Todev v AAI Limited t/as GIO
[2024] NSWPICMP 108
•22 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Todev v AAI Limited t/as GIO [2024] NSWPICMP 108 |
| CLAIMANT: | Kristy Lee Todev |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Philip Truskett |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injury in multi vehicle collision on 20 October 2016; assessment of permanent impairment of neck injury; parties accepted the assessment of the single Medical Assessor (MA) for the left shoulder, right shoulder and thoracic spine injuries; causation; cervical neck fusion; whether neck surgery due to neck injury caused by the accident or due to progression of pre-existing degenerative disease; where the single MA assessed whole person impairment (WPI) as DRE cervicothoracic category IV- 25% and deducted 100% due to pre-existing degenerative disease; Held – assessment of DRE cervicothoracic category IV WPI of 25% is wholly attributable to neck injury caused by the accident. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment that is GREATER THAN 10% (27%): · cervical spine; · left shoulder; · right shoulder, and · thoracic spine. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Kristy Todev was injured in a motor accident on 20 October 2016, when she reversed out of a parking space and was struck from behind by a vehicle insured by GIO, causing her vehicle to hit another.
The claimant claimed that she sustained injuries to her cervical spine, right shoulder, left shoulder and thoracic spine. She also claimed that she sustained psychological injury. She made a claim for damages against the insurer under the Motor Accidents Compensation Act1999 (the MAC Act).
As part of her claim, the claimant pursued damages for non-economic loss. According to s 131 of the MAC Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The insurer disagreed that the claimant had suffered whole person impairment (WPI) exceeding 10% for her physical injuries caused by the accident (the insurer also did not concede that the claimant suffered WPI exceeding 10% for her psychological injury. That matter is subject to a separate dispute).
According to s 57 and sub-s 58(1)(d) of the MAC Act, such a disagreement constitutes a “medical dispute” about one of the “medical assessment matters” that may be referred to the Personal Injury Commission (Commission) for assessment.
Pursuant to s 60 of the MAC Act, the claimant made such an application to the Commission and the matter was referred to Medical Assessor Ian Cameron for assessment (the medical assessment).
On 17 February 2023, the Medical Assessor issued a certificate finding that the claimant’s physical injuries caused by the accident gave rise to a permanent impairment of 2%.
THE REVIEW APPLICATION
On 13 March 2023, pursuant to s 63(1) of the MAC Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The review application was made within the time prescribed by s 63(7) of the MAC Act.
The President referred the application to a review panel (the Panel) for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application. [1]
[1] Section 63 (2B) of the MAC Act.
CONDUCT OF THE REVIEW
According to s 63(3) of the MAC Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Les Barnsley, Medical Assessor Philip Truskett and Member Maurice Castagnet.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 63 (3A) of the MAC Act.
RELEVANT LEGISLATION, GUIDELINES AND LEGAL PRINCIPLES
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[5]
[5] Clause 1.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[6] In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[6] Section 3B(2) of the CL Act.
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, they provide useful guidance to the presently constituted Panel.
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[7]
MEDICAL ASSESSMENT UNDER REVIEW
[7] [2022] NSWSC 372 (Briggs (No 2)) at [73].
As previously indicated, the Medical Assessor found the claimant’s physical injuries caused by the accident gave rise to a permanent impairment of 2%. Those injuries were:
· cervical spine – soft tissue injury;
· right shoulder – soft tissue injury;
· left shoulder – soft tissue injury, and
· thoracic spine – soft tissue injury.
The Medical Assessor assessed the WPI for the right shoulder injury at 0%, the thoracic spine injury at 0%, and the left shoulder injury at 2%.
In response to directions issued by the Panel, both parties confirmed that they accepted the WPI assessments made by the Medical Assessor for these injuries. Accordingly, the only matter that the Panel is concerned with in this review is the assessment of the injury to the cervical spine.
The Medical Assessor’s assessment of the cervical spine injury
In relation to the cervical spine, the Medical Assessor assessed a WPI of 25% on the basis that the claimant has had a cervical fusion with no current radiculopathy and therefore, a DRE Cervicothoracic Category IV was the appropriate evaluation.
The Medical Assessor concluded however, that the cervical spine surgery was not related to the accident because the claimant had pre-existing degenerative disease. The reasoning for that conclusion was that the claimant’s neck symptoms were initially not severe after the accident and symptoms possibly related to nerve root compression developed a long period after the accident. The Medical Assessor was of the opinion that the symptoms were consistent with progression of spinal degenerative disease and therefore not caused by the motor accident.
In arriving at his conclusion, the Medical Assessor indicated that he had reviewed three imaging studies as follows:
· an MRI of the cervical spine “dated 8 October 2016” which showed degenerative changes particularly at C5/6;
· an MRI of the cervical spine dated 20 May 2018 (referred to by the Medical Assessor as “approximately five months prior to the motor accident” which showed similar degenerative changes with no cord abnormality), and
· an MRI of the cervical spine dated 6 March 2020 which showed a C5/6 fusion and no obvious neurological compromise.
Upon review of the evidence before it, the Panel found that there was no MRI of the cervical spine dated “dated 8 October 2016” that was performed on that date or at any time prior to the accident. In response to the Panel’s directions, the claimant confirmed that no MRI of the cervical spine pre-dating the accident had been performed and that the subject MRI was done after the accident on 8 November 2016.
Although the insurer had made submissions to the Panel on the basis that there was in existence an imaging performed on “8 October 2016”, it was silent in response to the Panel’s directions seeking confirmation of a pre-accident MRI. We concluded that there was no pre-accident MRI.
SUBMISSIONS
Claimant’s submissions
The claimant submitted that the Medical Assessor failed to properly apply the principles of causation so as to reach a conclusion that even if the claimant had a pre-existing cervical spine condition, the motor accident made a material contribution to the progression, acceleration or exacerbation of that condition, which and gave rise to the need for a C5/6 cervical fusion in December 2018.
The MRI scan of the cervical spine dated 8 November 2016 performed three weeks after the accident, identified right posterolateral disc protrusion at C4/5 with mass effect on the thecal sac.
In reliance on the opinion of Dr Jonathan Herald, the claimant submitted that the injury to the cervical spine occurred as a result of the motor accident because prior to the injury, the claimant had no problems with her neck. The claimant’s subsequent complaints have been neck pain and numbness down her upper limb as well as muscular complaints.
In reliance on the opinion of Dr Balsam Darwish, the claimant submitted that the accident was the direct cause of the claimant’s symptoms and that before the accident, she was completely asymptomatic and had no neck or arm symptoms and had managed to work as a registered nurse for many years.
The claimant manifested cervical spine symptoms of a moderate to severe nature in the days and weeks subsequent to the accident. On that basis, it cannot be said that there was a “long period” between the development of symptoms and the date of the accident.
The MRI scan of 8 November 2016 demonstrated a disc protrusion. There was no other intervening traumatic event to explain the disc protrusion.
Insurer’s submissions
The insurer submitted that any neck injury sustained in the accident was minor and has completely resolved, leaving no WPI in the context of this claim. On that basis, the cervical spine surgery performed on 20 December 2018 was not causally related to the accident.
In support of that submission, the insurer indicated that the mechanism of injury is not consistent with the claimant’s reported symptoms. In particular, the insurer pointed out that no airbags were deployed; the claimant was wearing a seat belt at the time of the collision which would have limited any movement of her body; the claimant self-extricated from the vehicle and was ambulant at the scene; an ambulance was not called to the scene and the claimant did not present to hospital or any medical practitioner immediately after the accident, the NSW Police Force identified the accident as a “minor traffic crash”, and photographs of the vehicles taken at the scene depict minor damage only.
The insurer submitted that the available evidence of treatment after the accident indicates that, at most, minor injuries were sustained in the accident.
The insurer submitted that the available pre-accident records provided objective evidence of pre-existing symptomatic impairment. The relevant evidence of the claimant’s pre-accident complaints from the available records are summarised in Dr Andrew Keller’s report of
18 May 2023.[8] The insurer submitted that pursuant to cl 1.31 of the Guidelines, such pre-existing symptomatic impairment ought to be taken into account when determining the claimant’s WPI in the context of the claim.
[8] See page 18 of the insurer’s bundle.
The insurer relied on Dr Keller’s opinion in submitting that the accident was not the main cause of the claimant’s current reported disability or her requirement for cervical spine surgery. Dr Keller assessed a WPI of 25% for the cervical spine due to the claimant’s surgery, which was causally related to the claimant’s longstanding pre-accident complaints and therefore 100% deductible. On that basis, the claimant did not sustain any permanent impairment in relation to the cervical spine as a result of the accident.
MATERIAL BEFORE THE PANEL
The panel considered the material filed by the parties.
The claimant’s bundle of evidence comprised of 849 pages and the insurer’s bundle of evidence of 2,789 pages.
RE-EXAMINATION
The Panel was of the opinion that a re-examination of the claimant was not required in circumstances where the claimant has already had neck surgery by way of a fusion and where the only injury being assessed by the Panel is the neck injury. Any re-examination by the Panel would not alter an assessment of DRE Cervicothoracic Category IV which is the appropriate evaluation.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel relating to the matters under review, may be conveniently summarised as follows.
Pre-accident medical records
The claimant sustained an injury at work with Wollongong Hospital on 7 April 2008. An injury notification form indicated that the nature of the injury was ‘back ache/shoulders’ and the injury occurred while ‘sitting at a computer all day with little movement’.[9] The diagnosis made by general practitioner (GP), Dr Sammer Elhafi on 4 May 2008 in the Workcover medical certificate was ‘back strain’.[10]
[9] Page 435 of the insurer’s bundle.
[10] Page 457 of the insurer’s bundle.
About two weeks later, on 26 August 2018, the claimant completed a workers compensation claim form stating that by the end of the week on 11 April 2008 her “shoulders & back were aching immensely”.[11]
[11] Page 428 of the insurer’s bundle.
On 19 May 2008, an X-ray of the cervical spine and thoracic spine was performed at the request of Dr Elhafi. The imaging showed:
“There is loss of the normal cervical lordosis. No vertebral or intervertebral disc abnormality is apparent.”[12]
[12] Page 511 of the insurer’s bundle.
On 4 June 2008, a bone study was performed on the basis of left shoulder pain radiating to the neck. The study showed:
“There is no significant scan abnormality at the left shoulder, left scapula, cervical or upper thoracic spine. No scan evidence for cervical facet joint arthritis. The ribs and left clavicle are also normal. There is minimal arthritic change at the left elbow, wrist and fingers as described above. There appears to no significant abnormality noted in the soft tissues on the left side of the neck.”[13]
[13] Page 858 of the insurer’s bundle.
On 17 June 2008, a CT of the cervical and thoracic spine was performed on the basis of pain radiating from mid-thoracic region to left scapula and left arm. The report indicated the following:
“A small focal bulge of the C3/4 disc which could be a minor protrusion or a simple bulge but this does not appear to cause significant narrowing of the canal or compression of the sac. No other abnormalities are seen in the cervical or the visualised thoracic spine.”[14]
[14] Page 859 of the insurer’s bundle.
In a report dated 22 July 2008 from occupational physician, Dr Steven Ng, to the workers compensation insurer regarding rehabilitation assistance for the “thoracic back condition” (arising from the work injury of 7-11 April 2008), Dr Ng noted the claimant reported the following past medical history:
“The only neck injury that she had was a 2 day history of whiplash injury with some stiffness in the neck and headaches after a motor vehicle accident through work 6 months ago. She was doing a u-turn and her car was hit by another vehicle on the passenger side. She had no other injury and no history of ongoing neck problem.”[15]
[15] Page 497 of the insurer’s bundle.
On examination that day, Dr Ng found that the neck had a reasonable range of active movement in all directions. His clinical impression was:
“Mrs Todev has strained the posterior shoulder girdle musculatures and the scapulohumeral stabilising muscles especially the rhomboid and levator scapulae muscles of the left shoulder due to un-accustomed work posture and tension at the work place from 7 April 2008 to 11 April 2008 …”[16]
[16] Page 499 of the insurer’s bundle.
In his report of 6 August 2008, Dr Ng referred to the claimant’s injury of 7 April 2008 as “her thoracic back condition of strained posterior shoulder girdle musculatures and scapulohumeral muscles”.[17]
[17] Page 501 of the insurer’s bundle.
In his report of 20 August 2008, Dr Ng noted that the claimant returned for review of her for her “thoracic back condition of strained posterior shoulder girdle musculatures and scapulohumeral stabilizing muscles”. [18] The claimant reported that she was progressing well with minimal left shoulder pain until a flare up on the preceding weekend of spasm and severe pain in the posterior shoulder muscles. There was no evidence of any complaints to the neck but it was in any event, examined. Dr Ng found that the neck had a reasonable range of active movement in all directions.[19]
[18] Page 492 of the insurer’s bundle.
[19] Page 492 of the insurer’s bundle.
In a medical report dated 19 September 2008, occupational and environmental physician,
Dr Ross Mills expressed the opinion that the claimant’s condition (arising from the injury of
7 to 11 April 2008) appears to have resolved and that she would be fit to perform her pre-injury duties.[20]
[20] Page 468 of the insurer’s bundle.
On 28 August 2013, the claimant consulted GP, Dr Mark Condon of the Tongarra Family Practice. [21] The clinical records showed that the claimant attended with complaints of “lethargy, sore throat, coughing (yellow coloured sputum), diet ok, febrile at times/ aches and pain, eye discomfort”.[22] The clinical records show that on examination, there was “ant neck discomfort/tenderness/no LA”[23]
[21] Page 245 of the insurer’s bundle.
[22] Page 1,462 of the insurer’s bundle.
[23] Page 1,462 of the insurer’s bundle.
The Panel concludes from this assessment that the claimant had anterior neck pain but no lymphadenopathy (LA) which would all be consistent with pharyngitis from an upper respiratory tract infection. This is not the presentation of a musculoskeletal neck problem.
On 13 August 2014, the claimant consulted GP, Dr Tina Doan of the Shellharbour Medical Centre. [24] The clinical records showed that the claimant attended with the following complaints:
“3/7 headache
Has had panadol, nurofen plus
Forehead/neck/temples, “feels like head is about to explode’…
Came off working 6/7 at hospital
…”[25]
On examination, the claimant was “tender to left temple”, had “mild photophobia” and her “neck mildly tender”.[26]
[24] Page 245 of the insurer’s bundle.
[25] Page 497 of the claimant’s bundle.
[26] Page 497 of the claimant’s bundle.
The Panel considers that this was consistent with posterior cervical muscle tightness from a headache (noted to have migrainous qualities by the GP) rather than any indication of any primary neck disorder.
The Panel has reviewed all of the material submitted by the parties (3,638 pages). The Panel found no evidence of primary complaints from, or treatment of the claimant’s neck since 2008.
The claimant’s statement about her injuries
In her personal injury claim form dated 16 November 2016, the claimant described her injuries in the following terms:
“Front chest bruising – upper middle chest between breasts
Neck pain – front/back/side to side
Headaches – front forehead
Shoulder pain – left and right side
Thoracic pain – middle of the spine
Arm/Finger pain – left side.”[27]
[27] Page 41 of the claimant’s bundle.
Post-accident evidence of treatment and investigations
The clinical records of the Shellharbour Medical Centre showed that on the day following the accident, Saturday 22 October 2016, the claimant consulted a GP, Dr Salwa Hammad. Dr Hammad recorded:
“[the claimant] was involved in MVA accident yesterday afternoon
she was the driver, backed her car, another car hit the back of her car from the other side
neck, shoulder and upper back pain and stiffness since
no neurological symptoms
not keen to file a claim at this stage
Examination
Limited neck flexion and rotation
normal extension
tender on palpating C4/5/6
tender on palpating R trapezium muscle
Whiplash grade II…”[28]
[28] Page 507 of the claimant’s bundle.
On 25 October 2016, an X-ray of the cervical spine was performed and showed no evidence of any acute bony injury. The loss of cervical lordotic curvature was noted.[29]
[29] Page 670 of the insurer’s bundle.
On 27 October 2016, the claimant presented to emergency at Wollongong Hospital with “worsening neck/thoracic back pain” and “bilateral upper limb disathesias [30][sic] on background of MVA on 21/10/16".[31]
[30] dysaesthesia.
[31] Page 883 of the insurer’s bundle.
The clinical notes of the hospital recorded the following:
“Hit from behind whilst almost stationary (was changing from reversing to driving car) by car who reported they were travelling at 60km/hr. Bumped forward and hit third car which bumped forward and hit a forth [sic] car.
Pushed forward and hit chest on steering wheel
Airbags not deployed
Self-extricated from car
Immediate pain in R sided chest which hit steering wheel only
Awoke next morning with neck, shoulder and bilateral shoulder pain. Reviewed by GP who arranged C-Spine xray and prescribed panadeine forte.
Increasing back, shoulder and neck pain since, which worsens through the course of the day. Also reports tingling/shooting type sensation in bilateral upper arms radiating from elbow to shoulder when reaching above head for last 2 days. Reports associated feeling of weakness in shoulder abduction.”[32]
[32] Page 884 of the insurer’s bundle.
On examination at the hospital, it was found that the cervical spine was tender to palpation over the midline at level C4/5. A collar was given as a precautionary measure. Pressure on the shoulders produced pain in the trapezius muscles.[33]
[33] Page 885 of the insurer’s bundle.
On 27 October 2016, a CT scan of the cervical spine was performed at the hospital and reported no fractures.[34]
[34] Page 891 of the insurer’s bundle.
The claimant was discharged to the care of her GP with recommendations that an MRI of the cervical/upper thoracic spine be performed and that she be referred to Dr Cherukuri (a neurosurgeon).[35]
[35] Page 896 of the insurer’s bundle.
On 1 November 2016, the claimant consulted Dr Hammad with her discharge referral letter from Wollongong Hospital. Dr Hammad made the following observations:
“today she walked with notecible [36][sic] stiffness on left side of neck and left arm, minimal pain at rest, but painful with elevation of the arm, rotation of the neck and deep palpation on bony prominences of cervical spine.
Arm worm [sic], pinkish colour, but she feels numbness, in whole arm.”[37]
[36] noticeable.
[37] Page 508 of the claimant’s bundle.
On 8 November 2016, an MRI of the cervical spine was performed and reported the following findings:[38]
“At C4/5, there is a right posterolateral focal disc protrusion with mass effect on the anterior aspect of the thecal sac of the right of midline. This does not appear to impinge upon the cord or ventral nerve roots. C5 exit foramina are patent.
There appears to be mild narrowing of the C5/6 disc with some tiny neurocentral osteophytes. Again no significant narrowing of the canal or exit foramina.
Remaining cervical discs appear normal. There is a slight kyphotic curve in the mid cervical spine. Cords are of normal calibre and signal. No abnormality at the craniocervical junction. Signal from vertebral marrow was normal.”
[38] Page 786 of the claimant’s bundle.
A report dated 1 December 2016 from physiotherapist, Ms Belinda Tamlin recorded that the claimant has been attending treatment since the accident for symptoms of “whiplash and left ulnar nerve neurogenic pain/irritation”. Treatment included heat, ice, mobilisation exercises, postural re-education, neural mobilisation and exercise.[39]
[39] Page 1558 of the insurer’s bundle.
The clinical records of the Tongarra Family Practice showed that the claimant consulted GP, Dr Sanjay Chalissery on numerous occasions between 14 November 2016 and
November 2018 complaining about her neck and left arm symptoms (and other injuries sustained since the accident).[40]
[40] See pages 2011-2027and pages 1818-1819 of the insurer’s bundle.
A summary of the records of some (but not all) of these consultations and the complaints/observations made, is as follows:
(a) 14 November 2016 – motor vehicle accident three weeks ago. Pain in the neck radiating to the hand/fingers – mostly in the ulnar distribution;
(b) 18 November 2016 – motor vehicle accident - Pain in the neck radiating to left fingers;
(c) 9 January 2017 – Pins and needles in left 3-5 fingers radial aspect;
(d) 3 February 2017 – Neck stiffness;
(e) 9 February 2017 – Has had severe neck stiffness and left sided pins and needles and weakness in the ulnar distribution of the left hand. ? Brachial plexus injury. May need nerve conduction studies;
(f) 8 May 2017 – Still in pain. Brachial plexopathy + left arm;
(g) 19 May 2017 – Left brachial neuralgia ongoing;
(h) 24 July 2017 – Painful neck, stiffness, unable to turn her neck. In spasm ++;
(i) 28 July 2017 - Brachial neuralgia, pain worse/painful at night;
(j) 11 September 2017 – Left sided neuralgia/? CRPS post mva, neck stiffness ++;
(k) 25 January 2018 – Neck stiffness ++;
(l) 8 February 2018 – Neck stiffness/pain. Requests analgesia;
(m) 20 April 2018 - Brachial neuralgia;
(n) 15 August 2018 – Neck stiffness ++. Unable to move her neck. Endone gives her some relief. Neck movement very restricted;
(o)
4 September 2018 – Seen Dr Curtis. Severe neuralgic pains. To discuss with
Dr Cheruluki. Is there a plexus injury? Will surgery benefit her or make things worse, and
(p) 25 September 2018 – Very stressed from? Impending surgery.
On 11 January 2017, a bone scan was performed which made the following findings:
“There is no significant abnormal uptake.
Delayed static and SPECT images of the cervical spine demonstrate minimal and very mildly early degenerative changes along the posterior aspect of C5/C6. No other specific abnormality noted in the cervical spine. No specific abnormality noted in the elbows, hands, wrists or the shoulders.”[41]
[41] Pages 787 of the claimant’s bundle.
On 6 March 2017, neurologist, Dr Ron McGrath performed a nerve conduction study on a history of neck and left arm pain since the accident. He found that there was peripheral nerve pathology on the left side, suggestive of sensory brachial plexopathy and that the EMG of the left C5-T1 supplied muscles were normal. Dr McGrath noted that discolouration of the left arm also suggested a peripheral cause.[42] A further nerve conduction study performed by
Dr McGrath on 15 August 2018 again found that the pathology was suggestive of left brachial plexus.[43]
[42] Pages 799-800 of the claimant’s bundle.
[43] Pages 791- 792 of the claimant’s bundle.
On 3 April 2018, the claimant was seen by a specialist physician in rehabilitation and pain medicine, Dr Guy Bashford. In his report of the same date, Dr Bashford’s impression was that the claimant has bilateral cervical and left upper limb regional pain, but she did not fulfil the full criteria for chronic regional pain syndrome (CPRS).[44]
[44] Page 1,593 of the insurer’s bundle.
On 30 May 2018, the claimant was referred to neurosurgeon and endovascular surgeon,
Dr Jonathan A Curtis.
In a report of the same date, Dr Curtis noted that the claimant had never had episodes of significant neck or arm pain before the accident.[45]
[45] Page 86 of the claimant’s bundle.
Dr Curtis commented that the initial MRI scan of 8 November 2016 showed acute disc prolapse at C4/5 level particularly on the right side. He noted that although it contacts the cord, there is no compression and no foraminal stenosis. He noted that there is some collapsed disc at C5/6 with loss of signal but no neural compression or cord compression. He believed that the pathology at these two discs was causing a reversal of lordosis or kyphotic deformity which was significant for the claimant’s symptoms. Dr Curtis believed that the claimant had pathology in the neck, but he was not able to fully explain her left sided symptoms.[46]
[46] Page 86 of the claimant’s bundle.
On a subsequent consultation on 22 August 2018, Dr Curtis confirmed that the nerve conduction test conducted by Dr Rob McGrath on 15 August 2018[47] ruled out median and ulnar nerve compression syndrome as a cause for the claimant’s left distal arm symptoms.[48]
[47] Page 341 of the claimant’s bundle.
[48] Page 337 of the claimant’s bundle.
Dr Curtis indicated that the claimant had significant restrictions relating to her neck and that she should continue with conservative treatment such as physiotherapy and hydrotherapy until she felt that those measures were no longer of benefit.[49]
[49] Page 337 of the claimant’s bundle.
Dr Curtis indicated that if the neck problems remained unabated and continued to affect the claimant’s quality of life, the surgical options were for a fusion at C5/6 and a disc arthroplasty at C4/5 to alleviate the neck symptoms and minimise the effect on long term function and mobility.
There were no physiotherapist clinical records available to the Panel. However, the Panel notes that on 26 June 2019, the claimant reported to Dr Lewis Pierides that prior to the surgery, she had “lots of physiotherapy without benefit”.[50]
[50] Page 804 of the insurer’s bundle.
On 16 November 2018, the claimant was referred to neurosurgeon and spinal surgeon,
Dr Ravi Kumar Cherukuri for a second opinion about the proposed neck surgery.
Dr Cherukuri provided a report on the same day to Dr Chalissery.
Dr Cherukuri recorded that the claimant presented to his rooms with a history of neck pain, radiating to the left arm with paraesthesia in the hand and arm for over two years. The claimant’s neck has been sore and gradually getting worse, radiating to the left arm, with pain also in the left elbow.[51]
[51] Page139 of the claimant’s bundle.
Dr Cherukuri noted that the bone scan of 11 January 2017 showed C5/6 degenerative disc disease and the MRI scan of 8 November 2016 showed C5/6 and C4/5 small disc bulges, the C4/5 disc being prominent on the right side but with no cord compression.[52]
[52] Page 139 of the claimant’s bundle.
Dr Cherukuri noted that the repeat MRI scan of 21 May 2018 showed similar changes.
Dr Cherukuri noted that the proposed neck surgery was being considered for the C4/5 and C5/6 disc protrusions was reasonable given the claimant’s persistent neck pain. He recommended further investigations to rule out possible brachial plexopathy. [53]
[53] Page 140 of the claimant’s bundle.
On 20 December 2018, the claimant underwent a C4/5 disc replacement and a C5/6 anterior discectomy and fusion (ACDF) performed by Dr Curtis.[54]
[54] Pages 1,550 and 1,581 of the insurer’s bundle.
Medico-legal evidence
Dr Paul Carney, neurosurgeon, was qualified by the insurer. He provided a report dated
30 May 2019.
Dr Carney noted that the impact of the collision caused the claimant’s vehicle to hit the parked vehicle next to her which was struck with such sufficient force that the vehicle was thrown up on the kerb. Dr Carney noted that the claimant reported her neck was sore straight away.[55]
[55] Page 870 of the insurer’s bundle.
It appears that Dr Carney was qualified to provide a fitness for work assessment, post-surgery. He was not requested to comment on the causation of the claimant’s cervical spine injury. Dr Carney did not provide an opinion about causation of the claimant’s cervical spine injury or an assessment of permanent impairment.
Dr Lewis Pierides, occupational physician, was qualified by the insurer. He provided a medical report dated 26 June 2019.
Dr Pierides noted that the claimant was involved in a four-car front to rear chain collision with the claimant’s vehicle being the first to be hit.[56]
[56] Page 802 of the insurer’s bundle.
Dr Pierides reviewed the clinical records of the Tongarra Family Practice that was available to him and noted that there was no reference to neck pain prior to the accident.[57]
[57] Page 802 of the insurer’s bundle.
Dr Pierides commented that the MRI of 8 November 2016 did not reveal any abnormalities that could be responsible for upper limb symptoms. [58]
[58] Page 803 of the insurer’s bundle.
Dr Pierides believed that the claimant has been over investigated and treated and that the neck surgery was not related to the accident. There was no evidence on the MRI scan of
8 November 2016 of any pathology that might be responsible for upper limb symptoms. Minor degenerative changes at C4/5 and C5/6 are not an indication for surgery despite the failure of conservative management.[59]
[59] Page 804 of the insurer’s bundle.
Dr Balsam Darwish, neurosurgeon and spinal surgeon, was qualified by the claimant. He provided two medical reports dated 31 March 2020 and 20 July 2020.
Dr Darwish noted that the impact of the accident was strong to the point that it pushed the claimant’s car forward causing it to hit another car on the street.[60]
[60] Page 61 of the claimant’s bundle.
Dr Darwish noted that since the accident, the claimant had developed neck pain radiating to both upper limbs, more on the left side, pain in both shoulders and chest wall pain. Because of ongoing symptoms, the claimant went to emergency (at Wollongong Hospital) on
27 October 2016.[61]
[61] Page 61 of the claimant’s bundle.
Dr Darwish’s diagnosis was that there was a C4/5 disc protrusion, C5/6 radiculopathy, C4/5 disc replacement and C5/6 fusion. Dr Darwish believed that the motor accident was the direct cause of the claimant’s symptoms because before the accident she was completely asymptomatic and had no neck or arm symptoms and managed to work as a registered nurse for many years.[62]
[62] Page 64 of the claimant’s bundle.
Dr Darwish assessed the claimant’s cervical injury as DRE cervicothoracic Category IV giving rise to a WPI of 25% and that no deductions apply.[63]
[63] Page 67 of the claimant’s bundle.
Dr Darwish believed that the surgery performed by Dr Curtis was reasonable and necessary because the claimant failed to respond to all forms of conversative treatment.[64]
[64] Page 69 of the claimant’s bundle.
Dr Jonathan Herald, orthopaedic surgeon was qualified by the claimant. He provided a medical report dated 17 April 2020.
Dr Herald’s diagnosis was that the claimant had sustained a whiplash injury to the cervical spine with C4/5 and C5/6 disc prolapse, which was subsequently treated with a C4/5 disc replacement and C5/6 disc fusion but with residual chronic left upper limb pain.[65]
[65] Page 48 of the claimant’s bundle.
Dr Herald was of the opinion that the injury to the cervical spine occurred as a result of the motor accident, noting that prior to the injury, the claimant had no problems with her neck, and her subsequent complaints have been neck pain and numbness down her upper limb.[66]
[66] Page 49 of the claimant’s bundle.
Dr Herald assessed the cervical spine injury as DRE cervicothoracic category V which gives rise to a WPI of 35% because the claimant had a two-level injury with a C4/5-disc replacement and C5/6 fusion.[67]
[67] Page 50 of the claimant’s bundle.
Dr Michael H Y Lim, occupational physician, was qualified by the insurer. He provided a report dated 1 July 2020.
Dr Lim was of the opinion that the injuries caused by the accident were a mild Grade 2 whiplash associated disorder and bruising of the right chest wall and would have healed satisfactorily within a few months.[68]
[68] Page 828 of the insurer’s bundle.
Dr Lim was of the opinion that the neck surgery of 20 December 2018 was directed at degenerative pathology, not traumatic pathology. The right-sided disc protrusion at C4/5 did not explain the neurological symptoms in the claimant’s left arm. The symptoms in the left arm were non-anatomical, that is not a pattern consistent with physical (organic) pathology.[69]
[69] Page 828 of the insurer’s bundle.
Dr Lim was of the opinion that the clinical features of C4/5-disc replacement, C5/6 surgical fusion and no radiculopathy were those of DRE cervicothoracic category IV and giving rise to a WPI of 25%. However, he believed that the neck surgery of 20 December 2018 was directed at degenerative features of the cervical spine, not traumatic pathology and was ineffective in treating the claimant’s neck symptoms. The entire 25% WPI was therefore in respect of a pre-existing cause. [70]
[70] Page 830 of the insurer’s bundle.
Dr Andrew Keller, occupational physician was qualified by the insurer. He provided a report on 18 May 2023. 2023. His opinion was that it is plausible that the accident temporarily exacerbated the claimant’s ‘prior neck and arm complaints’. He believed that there is no objective evidence to show any lasting aggravation or long-term injury that would be expected to remain symptomatic nearly seven years later.
Dr Keller noted the ‘prior neck and arm complaints’ as follows:
(a) 9 October 2003 – motor vehicle accident on 6 October 2003 – mild whiplash associated disorder and muscular pain;
(b) 19 May 2008 –X-ray of the cervical and thoracic spine – normal;
(c) 4 June 2008 – left shoulder pain going to the neck – normal;
(d) 17 July 2008 – report by Dr O’Halloran – recurrent left scapular and interscapular pain, periodic fully recovery after physiotherapy. No organic basis for ongoing muscle tightness;
(e) 13 August 2008 – WorkCover claim for thoracic spine and shoulder pain – referred to specialist Dr Al Kawaja;
(f) 20 August 2008 – report by Dr Ng – WorkCover claim for neck and thoracic spine pain radiating to the left shoulder. Motor vehicle accident six months ago, causing 2 days of cervical spine pain – prescribed Endep;
(g) 22 August 2008 – report from Dr O’Halloran – long term interscapular pain – referred for rheumatology review by Dr O’Riordan – may need MRI, and
(h) 19 September 2008 – report by Dr Mills – injury claim 7 April 2008 – upper back pain to the shoulders resolved – fit for pre-injury duties.[71]
[71] Page 19 of the insurer’s bundle.
Dr Keller assessed the claimant as having a WPI of 25% as a result of past surgery –DRE cervicothoracic category IV. However, he believed that this appears to be due to the claimant’s “long-standing prior complaint” and that there would be a deduction of 100% for the effect of the prior condition.
DETERMINATION
Pre-existing impairment
The Panel’s review of the claimant’s medical records in the years before the motor accident indicate that the claimant’s prior cervical spine symptoms had resolved satisfactorily with few lingering symptoms. There was no indication of any persistent symptoms of neck pain or neurological symptoms in the upper limb. Moreover, concerns over the indication for an MRI in the weeks preceding the accident were dispelled when the supposed MRI from
8 October 2016 was found not to exist.It was the insurer’s submission that the available pre-accident records provided objective evidence of pre-accident neck complaints and pre-existing symptomatic impairment. In making the submission, the insurer also relied on Dr Keller’s evidence.
After conducting our own review of the pre-accident records that were available to the Panel, we do not agree with this submission.
Dr Keller referred to a complaint made on 9 October 2003 of “mild whiplash associated disorder and muscular pain” following a motor accident on 6 October 2003. The Panel noted that there was a reference to the complaint in the report of consultant occupational therapist, Mr Mateusz Miszczuk, dated 29 October 2020. In his report, Mr Miszczuk referred to “whiplash resulting from motor vehicle accident in 2003” and identified the source of the medical complaint as the clinical records of Dapto Medical Centre.[72]
[72] Page 1330 of the insurer’s bundle.
The records of Dapto Medical Centre were not before the Panel. Nevertheless, we accept that the claimant made the complaint on 9 October 2003.
Upon review of the evidence, the Panel found no evidence of any relevant neck complaints from September 2008 to the date of the accident. It follows that there is no basis for consideration of any pre-existing symptomatic impairment of the neck pursuant to cl 1.31 of the Guidelines.
Mechanism of injury
The insurer’s other submission was that considering the impact and mechanism of injury, any neck injury sustained in the accident was minor and has completely resolved leaving no WPI in the context of the claim. On that basis, the neck surgery on 20 December 2018 was not causally related to the accident.
The Panel notes that both parties relied on biomechanical reports regarding the mechanism of the injuries sustained in the accident.
We accept that a properly based analysis of the nature of the collision is relevant evidence that the Panel could take into account, although it would not be determinative of the extent of personal injury sustained by the claimant.[73]
[73] cf El-Mohamed v Celenk [2017] NSWCA 242 at [16].
Mr Keramidas noted that the accident involved a multi vehicle collision involving four vehicles.[74] Similar descriptions were noted by Dr Pierides and Dr Carney.
[74] Page 278 of the insurer’s bundle.
Mr Keramidas noted that the force of the collision was sufficient to push the claimant’s vehicle forward and it came into collision with a vehicle in the next parking bay which in turn collided with another vehicle in the following parking bay.
Having reviewed the multiple photographs of the post-accident damage to the claimant’s vehicle and the insured’s vehicle[75] and accepting Mr Keramidas’ concluding comments that the insured driver was travelling at between 40 and 50kmph on approach and at the time of impact, the Panel considers that the accident, being a rear-end collision, had the potential to cause a cervical disc injury.
[75] Pages 629,638,634 of the claimant’s bundle, page 278 of the insurer’s bundle.
Injury to the neck caused by the accident
The evidence showed that the claimant had onset of neck pain within 24 hours and within a week was experiencing dysesthetic (i.e neurological) symptoms in the arm.
An MRI scan of the cervical spine performed 8 November 2016, within three weeks of the accident demonstrated a right postero-lateral disc protrusion at C4/5, despite the symptoms being predominantly on the left side. Although it is impossible to date the onset of such a finding, the panel considered that on the balance of probabilities, this finding would be consistent with a new injury.
The panel therefore considers that the undisputed content of the contemporaneous clinical notes indicate that an injury did take place.
Therefore, the Panel considers that the motor accident could have caused an injury to the cervical spine and did cause an injury to the cervical spine.
Was the injury to the cervical spine responsible for the neck surgery?
The Panel noted that the evidence showed a continuous history of neck and arm symptoms from the time of the accident until the time of surgery by Dr Curtis.
Because of these symptoms, the claimant was referred to Dr Curtis. Dr Curtis investigated her with further cervical MRI scan. This did not reveal any discrete nerve root compression. Changes in the discs at C5/6 and C4/5 were noted. Dr Curtis recommended surgery based on persisting symptoms, failure of conservative treatment and the MRI scan abnormalities.
The panel notes that there have been several opinions indicating that in the absence of neurological signs and matching anatomical lesions then surgery was not indicated. Whereas these concerns are understandable, any dispute concerning the appropriateness, reasonableness, or necessity of the surgery in this clinical setting does not break the nexus between the accident, her symptoms, and her operation. The surgery was predicated on the symptoms which arose from the motor accident.
Moreover, there is no evidence of any prior symptomatic condition that would be an indication for any surgery. For these reasons the surgery is related to the accident.
The Panel therefore considers that her current WPI assessment, as calculated by Medical Assessor Cameron based on status post cervical fusion should stand.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The parties have confirmed for the Panel that they accepted the WPI of 2% assessed by Medical Assessor Cameron for the left shoulder.
Combining the WPI for the neck of 25% with a WPI of 2% for the left shoulder gives rise to a total WPI of 27%.
It follows that the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%.
CONCLUSION
The certificate of Medical Assessor Cameron is revoked. The new certificate of the Panel is attached to these reasons.
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