Verscio v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 57
•5 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Verscio v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 57 |
| CLAIMANT: | Marsha Vescio |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 5 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Kenna of 6 March 2023 about whether the claimant suffered a threshold injury to her T11 vertebra; claimant suffered a pre-accident injury to her T10 and T11 vertebrae which was confirmed by X-ray reports; claimant was involved in an accident the subject of this claim on 8 May 2020 and alleged that in the accident she suffered a fracture to her T11 vertebra; the radiologist who undertook the pre-accident scans provided an addendum report on 17 June 2020 after comparing the 2014 X-rays and noted that the previous examinations stated that the lower most lumbar vertebra was designated L5 however the claimant is a rare member of the population who has an L6 vertebra and accordingly the vertebra in the claimants spinal column had been incorrectly designated; the correct designation of the pre-accident vertebral compression fracture related to the T11 vertebra and this was not a new fracture; the Panel found that the claimant had only suffered a soft tissue injury to her T11 vertebra; Held – certificate of MA Kenna was correct. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel affirms the certificate and reasons of Medical Assessor Kenna dated 2. The claimant has suffered a soft tissue injury only to her T11 vertebra which is a threshold injury. |
STATEMENT OF REASONS
INTRODUCTION
In June of 2022, a dispute arose regarding the claimant’s threshold injury (then referred to as a minor injury) status. As a result, an application for medical assessment by the Personal Injury Commission (Commission) as prescribed by Division 7.5 of the Motor Accident Injuries Act 2017 (Act) was made.
Ms Vescio underwent an assessment with Medical Assessor Kenna (the Medical Assessor) on 14 February 2023. The Medical Assessor provided his findings on 9 March 2023 by way of certificate dated 6 March 2023.
The claimant seeks review of the Medical Assessor’s threshold injury determination dated
9 March 2023 pursuant to s 7.26 of the Act.The Medical Assessor found that a thoracic T11 soft tissue injury was caused by the accident and was a threshold injury.
There is a dispute between the claimant and the insurer about:
(a) whether the injury caused by the accident is a threshold injury under Schedule 2, s 2(e) of the Act.
Regarding the threshold injury dispute to be assessed, the following injuries were referred by the Commission for assessment:
(a) thoracic spine – T11 fracture.
As this matter involves the interpretation of radiological scans and a fracture of the claimant’s T11 vertebra, the parties did not require the claimant to be medically examined by the Panel.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
LEGISLATIVE BACKGROUND
The legislation
Part 7 of the Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Panel is to be constituted by a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
11.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 the Panel.
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
Consideration of the issues by the Panel
Clause 5.6 of the Motor Accident Guidelines (the Guidelines) provides guidance to treating practitioners, medico-legal practitioners and Medical Assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does the claimant have cervical and/or lumbar radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in minor injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
For the claimant’s injuries to fall outside the definition of a threshold injury in s 1.6, she would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are threshold injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Threshold injury
A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Guidelines may provide for the assessment of whether an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
The accident
The accident occurred on 8 May 2020. A collision occurred when another vehicle failed to give way to the claimant’s car when traffic was merging from the left lane.
Following this, the claimant reported that she started to experience pain to the lower back, with numbness in both hands and pain down the buttocks.
The claimant was the driver and was wearing a seatbelt. There were no passengers.
She was shocked but was able to pull her car over to the side of the road. Her car was driveable post-accident.
The claimant did not go to hospital, and she drove home.
Claimant’s submissions
The claimant submits that Medical Assessor Kenna has erred by:
(a) reaching a conclusion that was not ‘based in inferences of fact supported by logical grounds’;
(b) failing to abide by the required standard of proof;
(c) failing to provide sufficient reasons to support the determination, and
(d) failing to take into account relevant considerations.
The claimant refers to s 6.7 of the Guidelines which provides a test for causation as:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.”
The claimant says that it need be emphasised it has been recognised by the common law that the accident need not be the sole cause of the injury. The claimant submits that when determining if an injury was a result of an accident, the word ‘result’ “emphasises effect and is less concerned with the proximity of cause and effect”.
Additionally, the claimant submits that courts have concluded that any test of causation is merely whether the event, on the proposed hypothesis, was one of the “sum of conditions or relations which produced the damage”. The claimant says that, in short, the subject accident must have a causative link to the injury incurred but need not be the only cause of an injury, and that other factors such as pre-existing health ought be considered.
The claimant submits that the Civil Liability Act 2002 (NSW) provides that the standard of proof in motor accident claims is upon the balance of probabilities - see s 3B(2)(a).
The claimant submits that due to the evidence of a T11 fracture, she has sustained a non-threshold injury.
The claimant says that prior to the subject accident, she had been diagnosed with fractures to her T9 and T10 vertebra (see Dr Simon McKechnie report dated 9 November 2014). The claimant says however, that before the subject accident, she had not sustained any injury to her T11 vertebra.
The claimant says that following the accident, radiologist Dr Chung, observed that the claimant had a “25% anterior compression fracture of T11”. The claimant says that this diagnosis is corroborated by Dr Selwyn Smith, who concluded that the claimant “was T-boned and sustained a fracture to the T11 vertebra”.
On this basis, the claimant submits that she has sustained a non-threshold injury.
The claimant relies on the following medical evidence before the Medical Assessor which she submits is contrary to his speculation;
Date
Document
Comment
16/07/2014
Xray Report – Thoracic & Lumbar Spine
“There is loss of vertebral body height at T10”
…. “the loss of vertebral body height in a young patient at T10 may represent an acute compression fracture”.
16/10/2014*
Report of Dr Simon
McKechnie, Neurosurgeon
“She has been recently diagnosed with a T10
crush fracture”
6/11/2014 *
Report of Dr Simon
McKechnie, Neurosurgeon
“CT scan confirms a T10 vertebral crush
fracture with no retropulsion”
06/11/2014
CT Thoracic spine
“There is 30% anterior wedging of the T10
vertebral body” …”unchanged appearances of the presumed anterior wedge fracture at T10”
25/11/2014
MRI Thoracic Spine
“There is loss of vertebral body height at the
T10 vertebral body”
13/01/2015
Report of Dr Alan Home, Occupational Physician
“Due to persisting pain symptoms she requested further investigation. She was referred for plain radiographs of the thoracolumbar spine, which demonstrated a crush fracture at T10.”
“Imaging demonstrated a crush fracture of T10”…
13/01/2015
Report of Dr Alan Home, Occupational Physician
“I have reviewed all diagnostic imaging. I confirm that plain radiographs, CT scan and MRI scan investigations of the thoracolumbar spine have demonstrated a crush fracture at
T10”…
05/05/2015
Report of Dr James Bodel, Orthopaedic Surgeon
“On the available evidence this lady has suffered a wedge compression fracture of the T10 vertebral body”
**Reports appear to be electronically dated 22 July 2022, however appear to have been written following consultations on 16 October 2014 and 6 November 2014 respectively.
The claimant says that the Medical Assessor did not view the films for the scans listed on page 8 of his certificate. The claimant submits that given the overwhelming evidence to the contrary, the Medical Assessor’s mere speculation has not tipped the balance of probabilities in the insurer’s favour. The claimant submits that for this reason, his conclusions that this ‘may be a mistake’ is not sufficient to base a determination upon.
The claimant submits that Medical Assessor Kenna has erred by applying the incorrect test of causation. The claimant says that flowing from that error, the Medical Assessor has not drawn a conclusion upon the balance of probabilities. The claimant submits that again, mere theorising does not rise above the medical evidence at hand to a sufficient level to alter the balance of probabilities.
The claimant says that it is clearly more likely than not that the T10 fracture was not incorrectly diagnosed by several medical professionals upon their review of the films.
The claimant seeks a decision by way of a review that:
(a) the injuries are causally related to the subject accident, and
(b) the injuries sustained in the motor accident are not threshold injuries.
The claimant says that the medical documentation evidences that the claimant has sustained a fracture of T11 as a result of the subject accident. The claimant says that as this is an injury involving a fracture, it falls outside the definition of a ‘threshold injury’ according to
s 1.6(2) of the Act.
Insurer’s submission
Addressing the issues raised by the claimant, the insurer says that the claimant has submitted that the Medical Assessor’s certificate is incorrect in a material respect on the following grounds:
(a) reaching a conclusion that was not based in inferences of fact supported by logical grounds;
(b) failing to abide by the required standard of proof;
(c) failing to provide sufficient reasons to support the determination, and
(d) failing to take into account relevant considerations.
Ground (1) - Reaching a conclusion that was not based in inferences of fact supported by logical grounds
The insurer says that the claimant relies on the following quote, of the Medical Assessor, as the basis for their assertion that the Medical Assessor’s findings were not based on inferences of fact supported by logical grounds, when he stated “but this maybe a mistake and that the fracture was always T11” and which the claimant says is “nothing but mere speculation”.
The insurer says that notably, the quotation referred to by the claimant in her submissions is taken out of context.
The insurer says that when considering the entire paragraph containing this quote, it is clear that the Medical Assessor was merely summarising the submissions lodged by both parties in order to provide a context for the dispute. The insurer says that the entire paragraph is contained under the heading “Submissions”. The paragraph says:
“The insurer’s submission is that the claimant, Marsha Vescio, did sustain a threshold
injury in the motor vehicle accident, as defined in the Act, in that in a previous motor
vehicle accident in 2014 it was documented that there was a fracture of the T10
vertebra BUT THIS MAYBE A MISTAKE AND THAT THE FRACTURE WAS
always T11 and that subsequently as a result of the motor vehicle accident in May
2020, further x-ray indicated that there was still only one level of compression fracture seen and that a misdiagnosis of the level was made in reporting due to the fact that the lumbar vertebra had six lumbar vertebra, not five. (counting from below).”
The insurer says that at this stage in the certificate, the Medical Assessor was not balancing the weight to be given to each piece of evidence but was rather acknowledging the submissions put forward by both parties.
The insurer says that the claimant, in her submissions, has alleged that the Medical Assessor’s use of the word ‘maybe’ in the Certificate ‘implies nothing above a possibility’. The insurer submits that the Medical Assessor was merely summarising the submissions and submits that the choice to use the word ‘maybe’ was to acknowledge that the Medical Assessor had not accepted the insurer’s submissions on face value.
The insurer submits that the Medical Assessor was not making a conclusion by this stage of the certificate, and therefore could not have reached ‘a conclusion that was not based on inferences of fact supported by logical grounds’ as submitted by the claimant.
The insurer refers to the radiologist’s addendum report dated 17 June 2020 which found that the 2014 imaging had incorrectly identified the T10 vertebra as the site of the fracture rather than T11.
The insurer says that the Medical Assessor accepted these findings. The Medical Assessor agreed with the radiologist, stating that ‘the fracture as reported post-accident in 2020 does not seem to have changed since the imaging result of 2014, indicating that the report had exactly the same pathology at the same level’.
The insurer submits that the Medical Assessor’s determinations were not based on ‘speculation’ as alleged by the claimant but were rather based on the findings of the radiologist in the addendum report, consideration of the other evidence, and his own observations and experience.
Ground (2) - Failing to abide by the required standard of proof
The insurer says that the claimant alleges that the Medical Assessor has failed to apply the correct test for causation. In response the insurer says that the Medical Assessor said that there was ‘no indication that T11 has been FURTHER involved’ (insurers emphasis). The insurer says that the Medical Assessor stated that ‘there is no further fracture involving T11’ and states that ‘x-rays confirm no change from 2014’.
Earlier in his certificate, the Medical Assessor noted that in the addendum, the radiologist found ‘that the fracture as reported post-accident in 2020 does not seem to have changed since the imaging result of 2014’ which the Medical Assessor stated was further evidence ‘that the report had exactly the same pathology at the same level’.
The insurer says that on this basis, the Medical Assessor said that, as a result of the subject accident, the ‘thoracic spine at T11 did not sustain a fracture but may have sustained a soft tissue injury’.
The insurer submits that the Medical Assessor has considered the relevant evidence in relation to causation of the injuries and has correctly determined that there was no further fracture involving T11 as a result of the subject accident.
The insurer submits that the Medical Assessor clearly determined that, in line with the radiological addendum report, the T11 fracture in 2014 was incorrectly identified as T10 in the earlier radiology. The insurer says that there is no suggestion the fracture was incorrectly diagnosed, but rather that there was error when labelling the location of the fracture due to physiological differences in the claimant’s spine.
The insurer says that the Medical Assessor outlines his findings as to causation and states:
“The motor vehicle accident did not cause a further fracture at T11 and no
radiological investigations have confirmed such, but did confirm pre-existent
pathology pertaining to T11 caused by the 2014 motor vehicle accident. Hence, I accept there may have been soft tissue injury to the thoracolumbar spine. This may have included T11 but would be of a soft tissue injury nature only.
Such appears not to be the case with new pathology at T12 following the fall of May 22 indicating a non-minor injury, but non-motor vehicle related.”
As such, the insurer says that the Medical Assessor accepted that there has been no change observed in the imaging taken prior to and following the subject accident.
The insurer submits the Medical Assessor has satisfactorily apportioned the cause of the injuries with reference to the evidence.
Ground (3) - Failing to provide sufficient reasons to support the determination
The insurer says that the Medical Assessor clearly provides sufficient reasons to support the finding that the injuries to the claimant’s thoracic spine following the 2014 motor vehicle accident involved the T11 vertebra and not the T10 vertebra as reported at the time.
The insurer says that the Medical Assessor refers to the physiological reasons that led to this error in the 2014 imaging (namely that the claimant has ‘naturally six lumbar vertebra’) findings in the radiologist’s addendum report that the 2014 imaging had incorrectly identified the T10 as the site of the fracture rather than T11.
The insurer says that on this basis, the Medical Assessor states that ‘the wedge compression fracture refers to the pre-existent pathology, not to any new pathology’. The insurer says that the Medical Assessor provides reasons to support the determination that the subject accident did not cause a further fracture at T11 and states that subsequent radiological investigations ‘confirm pre-existent pathology pertaining to T11 caused by the 2014 motor vehicle accident’.
The insurer says that the Medical Assessor considered the possible presence of radiculopathy and found that this does not apply.
In the certificate, the insurer says that the Medical Assessor clearly outlines in his reasons for agreeing with the findings contained within the radiologist’s addendum report dated
17 June 2020 and how these findings influence his interpretation of the other imaging (prior to the subject accident, following the subject accident, and following a fall in May 2022).
Ground (4) - Failing to take into account relevant considerations
The insurer refers to the claimant alleging that by not accepting the evidence outlined in their review submissions, the Medical Assessor has not taken into account relevant considerations.
The insurer submits that the Medical Assessor has decided-in light of the evidence put forward by the parties and considered the evidence identified by the claimant in her submissions. The insurer says that the Medical Assessor explicitly states that he considered both the documentation supplied by the parties in their Application and Reply and the relevant radiology.
The insurer says that various reports of Dr Bodel, Dr McKechnie, and Dr Home from 2014 and 2015 were prepared without the benefit of the 2020 radiologist addendum report. The insurer says that again, Dr Chung who produced the addendum report, viewed and compared the images of the radiological investigations dated 16 July 2014,
6 November 2014, 25 November 2014 and 16 June 2020 [BG1] [AB2] when providing his report.It is the insurer’s assertion that the dispute in this matter does not require a consideration of competing expert evidence. Rather, it is the presence of a subsequent report which corrects identification errors regarding the location of the injury upon which earlier opinions were reliant. The insurer says that correcting this identification error is not to say that there was no fracture of the T11 disc following the 2020 accident, but rather that the fracture of the T11 disc was incorrectly identified as the T10 in the 2014 reports. As a result, the insurer says that the T11 fracture seen in the 2020 X-ray demonstrates the same injury that was identified in 2014.
The insurer says that it is therefore not a matter of ‘diametrically opposed’ versions of fact or competing conclusions but is instead the Medical Assessor’s agreement with the findings contained in subsequent evidence.
The insurer submits that by referring to the prior imaging and corroborating the findings contained in the addendum report, the Medical Assessor did settle this issue with reference to the evidence.
The insurer maintains that the claimant did not sustain any non-threshold injuries in the accident.
The insurer refers to the claimant submitting that prior to the subject accident, she had suffered a fracture to T9 and T10 (as outlined in a report from Dr McKechnie dated
9 November 2014) but denies that she had suffered any injury to T11 previously.The insurer says that in submitting she suffered a fracture at T11, the claimant relies on a report from radiologist, Dr Chung who observed that the claimant had a “25% anterior compression fracture of T11”.
The insurer relies on the addendum report of Dr Chung who compared imaging taken on
17 June 2020 with prior reports taken on 16 July 2014, 6 November 2014, and
25 November 2014. The insurer says that clearly, this addendum confirms that there was a difference in labelling the thoracic vertebra and therefore the minor compression fracture at T11 was unchanged.The insurer refers to the claimant asserting in her submissions that Dr Smith considered the claimant sustained a fracture to the T11 vertebrae. The insurer submits that Dr Smith is a psychiatrist and that this comment is outside his area of expertise and not based on any clinical knowledge or assessment.
The insurer disputes that the claimant sustained a fracture to the T11 vertebrae as a result of the accident.
Th insurer submits that the claimant has pre-existing mechanical back pain as a consequence of fractures to the T9 and T10 vertebra caused by an accident that occurred in 2014.
In this regard, the insurer relies on records from Punchbowl Family Practice that confirm between December 2015 and 28 January 2020, that the claimant was continuing to receive regular treatment with Dr Gergis and received prescriptions for Diazepam and Endone up until May 2019. After this, the claimant was prescribed Targin and Nurofen.
The insurer says that on 28 January 2020, almost four months before the subject accident, the claimant saw Dr Gergis for mechanical back pain and was given pain relief medication.
The insurer submits that based on the Allied Health Recovery Request (AHRR) Forms completed by Mr Duffy, it maintains that there is no evidence from the clinical examination that satisfies the diagnosis of radiculopathy as prescribed by the Guidelines.
Also, the insurer submits that on comparison of the report from Ms Nguyen in September 2014, and the AHRR’s completed by Mr Duffy, it would appear that the claimant’s condition has not really departed much from her pre-accident restrictions.
Further to this, the insurer notes that between 17 August 2020 and 15 February 2021, almost six months, that the claimant did not return to see her general practitioner (GP) for accident-related treatment. The insurer submits that this suggests that any problems associated with her back and neck following the subject accident were soft tissue in nature and had resolved.
The insurer says that to the extent that the claimant is suffering from any new back pain, the insurer submits this would be related to the recent T12 fracture caused after the claimant had a fall in May 2022.
The insurer notes that on 24 May 2022, the claimant underwent a CT of the lumbar spine and pelvis following a slip from standing height onto her right hip causing severe pain in the lower back and right sacroiliac joint region. The insurer says that there was an axial compression fracture involving the T12 vertebra with concavity of the superior endplate and 35% central height loss. The age of that superior endplate fracture was indeterminate, and the bones appeared osteopaenic. No other spinal fracture was demonstrated.
The CT concluded that the claimant had a superior endplate fracture of the T12 but that no other injury was demonstrated.
The insurer submits that to the extent that the claimant does suffer from any ongoing injuries, that these injuries are pre-existing and are attributable to non-accident related factors.
Medical evidence
The Medical Assessor provided the following summary of the relevant radiological and medical imaging:
“10 July 2014 – Thoracic and lumbar spine plain film – There is loss of vertebral body height at T10. It measured approximately 28mm posteriorly and 20mm anteriorly in keeping with a 30% loss of vertebral body height. The other vertebral bodies appear unremarkable. Conclusion: Loss of vertebral body height in a young patient at T10 may represent an acute compression fracture if the patient is tender in that region.
18 July 2014 – X-ray cervical spine – There are no fractures or dislocations.
6 November 2014 - CT thoracic spine – 30% anterior wedging of T10 vertebral body consistent with a previous compression fracture. No retropulsed fragments are evident. Appearances are unchanged since the previous plain film examination of 16 July 2014. There also appears to be minor superior endplate compression of the T9 vertebral body with a less than 20% reduction in vertebral height.
Comment: Unchanged appearances of the presumed anterior wedge fracture at T10 and minor superior endplate compression at T9.
June 2020 – MRI cervical spine – Mild reversal of the normal cervical lordosis associated with mild spondylosis with disc dehydration and a few uncomplicated generalised disc bulges.
X-ray thoracic spine – There was a slight curvature convex to the right inferiorly. There was a 25% anterior compression of T11. No other compression fracture are seen. There was minor osteophytic lipping involving the lower thoracic spine suggesting degenerative disease of the disc. No other bony abnormalities are seen.
Addendum reported 17 June 2020 – Review of the images was performed as requested. Comparison was made with previous examinations of 16 July 2014 and 6 November 2014 and 25 November 2014.
In the previous examinations, the lower most lumbar style vertebra was named L5. This is incorrect as it is noted today there are six lumbar style vertebrae. On today’s examination, this vertebra was designated as S1 (partially lumbarised S1 vertebra). In light of the correlation of the appearance of the thoracic and lumbosacral spine, this accounts for the difference of the thoracic vertebra, therefore the minor compression fracture at T11 is unchanged.
The x-ray of 24 May 2022 following the fall reports as follows: Clinical history – slip from standing height onto right hip. Severe pain in the lower back and right sacroiliac joint. Previous motor vehicle accident and fractured back in three places, although no records available. Findings: There is an axial compression fracture involving T12 with concavity of the superior endplate at 35% height loss. The age of the superior endplate fracture is indeterminate. The bones appear osteopenic.
No other fracture was demonstrated. Sacrococcygeal angle is rather acute but no fracture of sacral coccyx is evident. No fracture of the proximal femur or pelvis is demonstrated. There is no significant canal or foraminal stenosis in the lumbar spine. No evidence of disc protrusion. Conclusion: Superior endplate fracture of T12, age indeterminate. No other injuries demonstrated.”
The Medical Assessor provided a diagnosis and reasons, saying;
“It has been determined that she sustained fractures involving the lower thoracic spine in a motor vehicle accident in 2014. Not picked up at the time was the fact that she had naturally six lumbar vertebra and therefore if not picked up, then what would be pathology of T10 becomes T11. Such appears to be the case in this instance, as there is no new pathology at T11 per se as opposed to NO pre-existent pathology from T10.
What is known therefore is that from the motor vehicle accident of 2014, several x-rays were taken and therefore it is well defined that she sustained T11 crush fracture and endplate fracture of T10 as well. (FACTORING IN 6 LUMBAR VERTEBRAE-NOT 5) That is, T10 , correctly counted never sustained a crush fracture in 2014, but it was T11 all along. Which is what appears now.
The misleading report following the motor vehicle accident of May 2020 was reporting a fracture 25% anterior compression fracture of T10 but this in actual fact is acknowledging the previous exactly wedge compression fracture which occurred in 2014, but mislabelled as T10 and not T11.
Subsequently on 17 June 2020, the radiologist made an addendum to the original report, indicating the comparison scan was made between the 2014 x-rays, noting that the previous examination stated the lower most lumbar vertebra was designed (sic) at L5 when in actual fact it was L6 and therefore the lower most should be designated S1. That being the case, the vertebral compression fracture referred to relates actually to T11 pre-existent pathology, as opposed to T10 which appears not to have incurred any wedge compression fracture.
Hence as noted, the radiologist has made an addendum to this report indicating the compression fracture is actually T11 and the mistake was made on the basis of the transitional vertebra and the mislabelling of the vertebral levels from there.
Furthermore, if there was to be involvement of T11 and T10 was previously diagnosed, then there would have been a reported two levels wedge compression which simply isn’t the case. It is also important to note that the radiologist commented that the fracture as reported post accident in 2020 does not seem to have changed since the imaging result of 2014, indicating that the report had exactly the same pathology at the same level.
It is also important to note that with regards to qualifying for a non-minor injury, there needs to be also the presence of radiculopathy as another way of considering a non-minor injury. That is simply not the case. There is no evidence of radiculopathy involving either upper or lower extremities as a result of the motor vehicle accident. Never has there also been any reporting of radiculopathy in any of the enclosed reports.
The subsequent x-rays if another level was involved would need to show 2 levels of wedge compression, which simply isn’t the case. However, pertaining to the vertebra at T11, no such injury has occurred and the claimant has not sustained any injury to the T11 vertebra which would qualify for a non-minor injury.
What has happened is that a fall in May 2022 with post x-rays indicate a compression fracture at an entirely new level T12.”
Regarding causation and reasons, the Medical Assessor said;
“…I consider she sustained soft tissue injuries superimposed upon pre-existing pathology from the 2014 motor vehicle accident well documented in which she sustained wedge compression fractures at T11.
There has been no indication that T11 has been FURTHER involved and I have explained in the report that this misunderstanding has occurred as a result of the claimant having six lumbar vertebra and therefore the T11 has been mislabelled as T10.
Subsequently, that has been since corrected and it is noted therefore the wedge compression fracture refers to the pre-existent pathology, not to any new pathology.
That being the case, there is no further fracture involving T11 (x-rays confirm no change from 2014) and I therefore consider that pertaining to the motor vehicle accident of 2022, that thoracic spine at T11 did not sustain a fracture but may have sustained a soft tissue injury. This would not comply with a non-minor injury but would comply with a minor injury only, similarly as there is no evidence of
accompanying radiculopathy.
The motor vehicle accident did not cause a further fracture at T11 and no radiological investigations have confirmed such, but did confirm pre-existent pathology pertaining to T11 caused by the 2014 motor vehicle accident.
Hence, I accept there may have been soft tissue injury to the thoracolumbar spine. This may have included T11 but would be of a soft tissue injury nature only. Such appears not to be the case with new pathology at T12 following the fall of May 2022 indicating a non-minor injury, but non-MVA related.”
Dr McKechnie treating neurosurgeon report 25 July 2022. She has been recently diagnosed with a T10 crush fracture on a plain X-ray. There is no significant retropulsion. There is approximately 30% anterior crush and perhaps an end plate fracture to the T9 vertebra
Dr Home, occupational physician, provided a report of 13 January 2015. He said that on the basis of the available evidence, the claimant’s symptoms did relate to the effects of the accident.
Clinical notes of Punchbowl Family Practice – from 14 August 2012. These record an active history noted as compression fracture of vertebra;
“5 May 2014 mechanical back pain
29 May 2014 acute neck pain
13 May 2014 note of second visit to GP following MVA last week on Monday. Requires medical certificate for insurance company. Reports continuing lower back pain, no improvement from last week. This is associated with paraesthesia. Relieved by leaning and arching forward. Pain rated 9/10 at its worst. Unresolved neck stiffness and pain upon neck extension. New pain reported in shoulder joints bilaterally – rated 6/10.
13 May 2014 pain in neck and low back not settling. second visit to the GP following MVA last week on Monday
Requires medical certificate for insurance company and new referral for physio with updated medication list
Reports continuing lower back pain; no improvement from last week. This is associated with parathesiae. Relieved by leaning and arching forward. Pain rated 9/10 at its worst
Unresolved neck stiffness and pain upon neck extension
New pain reported in shoulder joints bilaterally - rated 6/10 •
Also reported intermittent 'shooting pain' in L forearm and leg, described 'like a crampy feeling'. Rated pain 10/10 at its worst
Pain wakes pt from sleep
Reports feeling very drowsy from the Valium and unable to get of the house; has minimal effect on pain – complains pain still present in morning. She is hoping for different pharmacological therapy.
diagnosis of mechanical back pain
29 May 2014 ongoing neck and back pain and stiffness, feels physio helping but often in pain when leaves.
17 June 2014 ongoing neck and back pain and stiffness post MVA.
17 July 2014 compression fracture of vertebra.
18 July 2014 cervical spine x-ray explained. No fracture identified.
11 August 2014 right side lower back pain radiating to lateral right thigh and hip last few days also complaining of left forearm pain intermittent since accident – right sciatica. On examination tender T10. Examination:
tender T10 and PS mm bilat L spine
SLR -ve x2 (straight leg raising test performed twice, normal on each occasion,
tender L CEO (acronym not recognised by Panel)
11 September 2014 compression fracture of vertebra noted.
17 December 2014 compression fracture of vertebra noted.
11 February 2015 needs analgesia – persistent back pain – compression fracture of vertebra.
6 May 2015 needs new referral at request of case manager. Pain in neck and low back continuing to limit ADLs. Has not yet seen new psychiatrist.
26 August 2015 acute on chronic low back pain, worse on change of posture – mechanical pain.
21 October 2015 compression fracture of vertebra
19 January 2016 persistent back pain, physio measures advised.
15 March 2016 physio measures re-low back pain – compression fracture of vertebra.
29 April 2016 compression fracture of vertebra.
9 November 2016 mechanical back pain
17 March 2017 mechanical back pain
25 May 2017 neck pain
25 July 2019 compression fracture of vertebra.
28 January 2020 mechanical back pain
15 May 2020 – MVA on 8 May 2020 left side cervical spine pain mid thoracic spine pain.
12 June 2020 neck pain
24 June 2020 – to chase films re-left spine fracture – compression fracture of vertebra.
9 July 2020 new report re-lumbar spine films – need old films to compare – compression fracture of vertebra.
16 July 2020 compression fracture of vertebra – imaging request printed for MRI scan of thoracic spine – query compression fracture of thoracic spine – MVA.
10 August 2020 – for referral – neck pain
30 April 2021 – mechanical back pain
25 August 2021 compression fracture of vertebra.
25 May 2022 claimant wanting medical advice regarding recent CT imaging. Claimant advised that practice not taking any insurance related medical matters and encouraged to seek alternative GP who deals with insurance and claimant agreed to this”
Punchbowl Family practice clinical notes from 14 August 2012:
“Surgery consultation
Recorded by: Dr Karim Gergis Visit date: 05/05/2014
Recorded on: 05/05/2014
mva on Mon
other car went to back of her car @ -40km/h
LOC- taken to ED- no d/c summ available
hit head on head-rest
well until Tues when developed severe neck and back pain and stiffness
depoprovera given L deltoid
CT lumbar spine 24 May 2022
Conclusion: Supenor endplate fracture of T12, age indeterminate, no other infury demonstrated
DEXA scan may be warranted.”
Dr Vickery in his psych report of 4 May 2022 found a somatic symptom disorder.
Dr Kulkarni 1 August 2022[BG3] [AB4] :
“Review of her T12 fracture following a fall in Big W just under 3 months ago. Marsha is an otherwise well 43 year old female. She has had previous fractures of her thoracic spine (T9/10 and T11) which healed without surgical management. She has had ongoing pain in her low back and numbness in her toes and fingers. She has restarted work for 6 hours/twice per week.”
Dr Walls report dated 13 February 2023. This is a workers compensation assessment to see why the claimant was unable to upgrade her duties. It was reported;
“Outcome of treatment to date has been puzzlingly poor.
The thoracic vertebral endplate fractures would have long ago healed but Marsha
Vescio was continuing to report significant pain with activity and other assorted Symptoms.
The date of injury is 26 May 2022, Marsha Vescio was buying some food at
Woolworths when she slipped on an object and landed with force on her bottom. She had considerable thoracic pain and pain over the right lateral aspect of the right hip.
After some delay, she was taken to the hospital and had an MRI scan, this was not available but Marsha's treating surgeon, Dr Kulkarni in his letter of 1 August 2022 describes a T12 fracture (?endplate fracture of T12).
Apparently there has been some difference or confusion in the nomenclature of the bony levels, nevertheless one of the later monitoring MRI scans of the thoracic spine available in the documentation is dated 1 October 2022, and describes:
‘... moderate T11 biconcave compression fracture is the most severe with a 40% loss of vertebral body height. Concurvity of the adjacent endplate. No bone marrow oedema. No discogenic degenerative change. Mild L1 superior endplate concave fracture.
Mild concave compression fractures of the T10 vertebral body.
The T12 vertebral body is relatively preserved.
Within the left T10 vertebral body there is a 10mm incidental hemangioma. Throughout the thoracic spine there is no focal disc protrusion, canal or foramina! stenosis. No focal nerve impingement.
Normal thoracic spinal cord. The conus is located at L1.
The thoracic facet joints are relatively preserved without facet joint effusion or bone marrow oedema.
She has been attending physiotherapy and today describes herself as much improved.
Nevertheless, she was working 37.5 hours of work per week prior to her accident and at this time, approximately 10 months after the accident, has only achieved 3 hours a day for 3 days of the week, working at home undertaking clerical/administrative activities.
With respect to her current symptoms, Marsha Vescio describes pain every day which lasts all day.
She describes an ache in the thoracic region with sharp exacerbations, these
discomforts radiate superiorly to the left scapular and cervical spine.
She indicates discomfort over the lateral aspect of the right hip (? trochanteric bursa).
Marsha further describes numbness and pins and needles affecting both her feet and hands, the hands are equally affected in the ulnar nerve distribution, in her feet Marsha reports that the great toe and second toe are affected in the feet, again both equally.
There is a medical history, of previous back injuries. Marsha Vescio reports two motor vehicle accidents, the first in 2014 when she attributes the T8 changes to, and a further accident in 2020 which caused the damage to the T11 disc.
Both of these were managed conservatively and she returned to normal activities over a period of about two months.
Conclusion:
• Moderate old T11 biconcave compression fracture. 40% loss of vertebral body
height.
• Old T10 and L1 superior endplate compression fractures.
• The T12 vertebral body is satisfactory.
• No fracture retropulsion of the spinal canal. Normal spinal coml.
• No endplate, no marrow oedema. No focal disc lesion or nerve impingement.”
Dr Bodel provided a report for the claimant on 5 May 2015 regarding an earlier accident claim.
On 16 July 2014 she had plain X-rays of the thoracolumbar spine. She was told that there was a wedge compression fracture at the T10 vertebral body and her doctor then referred her to Dr McKechnie.
Dr Bodel reported that a;
“CT scan and MR1 scan were done… The reports of the films are somewhat confusing. The CT scan done on 06 November 2014, some seven months after the injury reports that there is a “presumed anterior wedge fracture at T10 and minor superior end plate compression at T9".
The CT scan done a few weeks later shows that there is no bone marrow oedema, disc protrusion or significant ligamentous injury identified. The previously injured vertebral bodies appear completely united.
She reports that her main area of pain is in the interscapular region of the thoracic spine and at the thoracolumbar junction particularly on the right side along the medial border of the scapula.”
Dr Bodel reported that the claimant had a "multilevel structural compromise'' in accordance with Item 4.33 on Page 28 of the Motor Accident Authority Guidelines. She had "fractures of more than one vertebra”. He said that she;
“therefore had a DRE thoracolumbar category IV level of assessable impairment in accordance with the description in Table 74 on Page 3/111 of AMA4”.
There is the multilevel structural compromise with the two vertebral bodies involved and that gives a 20% Whole Person Impairment rating.
In addition to that she has a DRE cervicothoracic category II level of assessable impairment in accordance with the description in Table 73 on Page 3/110 of AMA4. There is asymmetry of movement and guarding and no clinical sign of radiculopathy and there is a 5% Whole Person Impairment rating. There is no other rateable pathology,
When these two ratings are combined using the Combined Values Chart on Page 322 of AMA4 (20% and 5%], the final level of Whole Person Impairment is a 24% Whole Person Impairment for this injury.”
Panel examination/considerations
The Medical Assessors have considered the radiological scans of the claimant and the respective bundles of documents provided by the parties. Their observations follow;
“Southern radiology Hurstville MRI thoracic spine 25 November 2014 – capacious spinal canal , soft tissue bump at the thoracic apex. The upper vertebrae images probably two L1 show a moderate degree of cavity consistent with some central compression the endplate. There is smalls node and what is probably T10 and L1 is mildly compressed centrally. No count is possible to confirm level, transverse images are unremarkable. No Modic 2 changes, capacious canal, coronal view normal alignment. No C2 and no L5 to count from. T 11 central compression of about 50% and there is Schmorl’s node in the upper T 10 endplate.
Southern radiology CT thoracic spine without contrast 6 November 2014 – transverse: normal canal minor degenerative changes in the facet joints. CT does not include C2 or L5, no count is possible. Impression of some bi-concavity from a central Schmorl's node in the upper end plate of probably 10 and old healed compression fracture at probably T11 and a vertebral endplate depression as well. Vertebral endplate depression at probably L1 is not associated with cortical fracture and is an old injury. T 11 is difficult to measure as all of the sagittal images are on the one sheet and a very small scale. T 11 is well healed and of indeterminate age.
Southern radiology Hurstville x-ray thoracolumbar spine dated service 16 July 2014. – Films include the lumbosacral junction giving a count up from the lowest functional intervertebral disc indicating compressed vertebrae is TV 11 with posterior vertebral height 27 mm, central vertebral height 17 mm anterior vertebral height 20 mm.
L1 superior endplate central concavity is not seen on the plain x-rays, the anterior and posterior vertebral heights are equal.
General comments – on this penetration there is considerable osteoporosis. AP view shows straight spine. The endplate changes noted on the CT scan are of adjacent vertebrae to the fracture. These films are 100% magnification but fortunately taken as the lumbosacral imaging and separate cervico- thoracic imaging.
City X-Ray CT lumbar spine CT pelvis 24 May 2022. Lumbar spine is essentially unchanged. Images are too small to make measurements sagittal imaging confirms six lumbar vertebrae and shows the Central endplate depression at T11. The imaging does not reach more cephalically.
On June 16, 2020, I Med Radiology in Punchbowl, New South Wales, performed several diagnostic tests on the claimant, including an ultrasound of the left shoulder, an ultrasound of both hips and the groin, and x-ray imaging of the pelvis, thoracic, and lumbar spine. The lateral x-ray images, which were taken at a reduced magnification, revealed a wedging at the T11 vertebra. The measurements of this wedging showed a posterior height of 22 mm and a central height of 14 mm. The ultrasound of the shoulder shows bursitis. She was 41 years old when this was performed. The x-rays of the pelvis on both hips are normal. The x-ray of the lumbar spine is normal. Ultrasound examination of pelvis and groin is normal. Comment – bone quality looks much better on this imaging. And the appearance of osteoporosis is not seen on the CT imaging. The radiographer has over penetrated the lateral x-ray to better contrast the bone against the overlying liver and spleen soft tissues.
MAA PIG version 4 clause 6.148 – Compression fracture: the preferred method of assessing the amount of compression is to use lateral x-ray of the spinal region the beam parallel to the disc spaces. If this is not available, a CT scan can be used. Caution should be used in measuring small images as the error rate difficult unless the medical assessor has the ability to magnify the images electronically. Medical assessors should not rely on the estimated percentage compression reported on the radiology report but undertake their own measurements to establish an accurate percentage using the following method.
6.148.1 The area maximum compression is measured in the vertebrae with a compression fracture.
6.148.2 The same areas of vertebrae directly above and below the affected vertebrae is measured and an average obtained. The measurement from the corresponding vertebrae then subtracted from the average of the two adjacent vertebrae. The resulting figure is divided by the average of the two unaffected vertebrae and turned into a percentage.
6.148.3 – If there are no two adjacent vertebrae, then the next vertebrae that is normal and adjacent bubble below the affected vertebrae is used.
T11 – 17 mm at point of maximum compression, T10 24 mm T 12 27 mm and equivalent points (note Schmorl’s node centrally located in the upper border T 10 and central bi-concavity L1). Measurements made from the Southern Radiology Hurstville plain x-rays of the thoraco- lumbar spine of 16 July 2014 reported to be at 100% magnification using a digital Vernier calliper.
The equation then becomes 24+27/2 = 25.5 - 17 = 8.5/24.5 = 34% = 12% WPI on the basis of AMA table 75 but the Panel is not required to make, and does not make a finding on this.
The more recent I Med planar imaging is not 100% magnification and the corresponding measurements are less accurate, however the percentage collapse derived is in the same range.
Explanation:
The vertebral column development is under the influence of a series of master genes for segmentation. These are called HOX genes and determined the development of head, thorax, abdominal, and tail segments in all animals including insects. They can be thought of as orchestra conductors for more specific developmental genes that constitute the many and varied orchestras, bands and instruments played. At junctional areas of development, the influence of HOX genes overlap. In the genus Hominidae (great apes) there are 32 vertebrae. The commonest segmentation arrangement in humans is seven cervical vertebrae, 12 thoracic vertebrae, five lumbar vertebrae, five sacral vertebrae and three coccygeal vertebrae (7-12-5-5-3). The formula in chimpanzees is most commonly 7-13-3-6-3 reflecting the different embryological development. About 10% of all human spines will show some variation in segmentation. There may be 6 functional lumbar vertebrae or there may be 4. This is a normal anatomical variation and not associated with any particular spinal condition.
For the radiologist, the problem is to determine which thoracic vertebrae is which. Ideally, he will have films that include all of the cervical and thoracic vertebrae. The C2 vertebrae is easily recognised and there are always seven cervical vertebrae. He can therefore countdown to determine the thoracic level injured. Less satisfactory is a film that includes the lumbar vertebrae and the sacrum as well as the thoracic vertebrae (at least in part). He would therefore count up from the lowest normally formed intervertebral disc on the assumption that this is the L5-S1 disc. This seems to be what was done on 10 July 2014 thoracic lumbar spine plain x-ray film. There the fractured vertebrae is deemed to be at the T10 level.
However, Ms Vesico has six lumbar vertebrae and the lowest functional intervertebral disc is S1-2 level and the thoracic spine count is out by one level. The radiologist reporting on 17 June 2020 imaging had the opportunity to later review the 2014 films and, in the addendum, corrects the error of reporting the 2014 films. He correctly identifies the T11 vertebrae as the one that is fractured in 2014.
Medical Assessor Kenna includes this information in his MAC certificate. But there is further source for confusion as the Medical Assessor speaks of the x-ray of 24 May 2022 as being axial compression fracture of the T12 vertebra. It is not clear whether the Medical Assessor has made a typographical error or the original report is wrong or there has been a further vertebral fracture suffered when Mrs Vescio fell on 11 May 2022. That seems to be a new fracture unrelated to either motor vehicle accident and possibly the subject of a public liability claim. That radiology is not in the material forwarded to the Panel, and in any case is unrelated to the motor vehicle accident.
The Panel has reviewed all of the available imaging and is satisfied that the fracture is at the T11 level. The Panel has also compared to lateral plain x-rays of the spine to look at the overall appearance of all the lower thoracic and upper lumbar vertebra. This is unchanged between 2014 and 2020 films.
There are some developmental anomalies in the upper end plates of T10 and L1 which are unchanged in all the films. These belong to the period of rapid spinal growth in puberty and are common anomalies unconnected to either motor vehicle accident.
The Panel agrees with the findings made by Medical Assessor Kenna that the motor vehicle accident of 2020 caused a soft tissue injury only which was a threshold injury under the Act.”
Causation
The claimant was involved in a motor vehicle accident on 8 May 2020. The accident involved the claimant’s car and the insured car impacting when the insured car merged from the left lane.
The claimant did not immediately seek medical assistance. She was able to drive home herself.
Prior to the accident, the claimant had been involved in an accident on 28 April 2014 when she sustained crush fractures to various thoracic vertebrae designated as T7, T9 and T10 vertebrae. This was a rear end collision.
The claimant then suffered a fall on 11 May 2022.
The Medical Assessor commented, correctly in the opinion of the Panel that;
“Marsha Vescio is a 44-year-old female with a significant history of past motor vehicle accident in 2014, who was involved in a further motor vehicle accident on 8 May 2020, in which I consider she sustained soft tissue injuries superimposed upon pre-existing pathology from the 2014 motor vehicle accident well documented in which she sustained wedge compression fractures at T11.
There has been no indication that T11 has been FURTHER involved and I have explained in the report that this misunderstanding has occurred as a result of the claimant having six lumbar vertebra and therefore the T11 has been mislabelled as T10.
Subsequently, that has been since corrected and it is noted therefore the wedge compression fracture refers to the pre-existent pathology, not to any new pathology.
That being the case, there is no further fracture involving T11 (x-rays confirm no change from 2014) and I therefore consider that pertaining to the motor vehicle accident of 2022, that thoracic spine at T11 did not sustain a fracture but may have sustained a soft tissue injury. This would not comply with a non-minor injury but would comply with a minor injury only, similarly as there is no evidence of accompanying radiculopathy.
The motor vehicle accident did not cause a further fracture at T11 and no radiological investigations have confirmed such, but did confirm pre-existent pathology pertaining to T11 caused by the 2014 motor vehicle accident.
Hence, I accept there may have been soft tissue injury to the thoracolumbar spine. This may have included T11 but would be of a soft tissue injury nature only. Such appears not to be the case with new pathology at T12 following the fall of May 2022 indicating a non-minor injury, but non-MVA related.”
The insurer refers to the claimant submitting that prior to the subject accident, she had suffered a fracture to T9 and T10 as outlined in a report from Dr McKechnie dated
9 November 2014 but denies that she had suffered any injury to T11 previously.In submitting she suffered a fracture at T11, the claimant relies on a report from radiologist, Dr Chung who observed that the claimant had a “25% anterior compression fracture of T11”.
However, the insurer relies on the addendum report of Dr Chung who compared imaging taken on 17 June 2020 with prior reports taken on 16 July 2014, 6 November 2014, and
25 November 2014. The insurer says that clearly, this addendum confirms that there was a difference in labelling the thoracic vertebra and therefore the minor compression fracture at T11 was unchanged. The Panel agrees.As has been reported by the Panel in the radiological summary above, the claimant has six lumbar vertebrae and the lowest functional intervertebral disc is S1-2 level. The thoracic spine count is out by one level in the original reporting. The radiologist reporting on
17 June 2020 with imaging of that date, has had the opportunity to later review the 2014 films and, in the addendum, corrects the error of reporting the 2014 films. He correctly identifies the T11 vertebrae as the one that was fractured, prior to the accident of 8 May 2020.The Panel is not satisfied that the claimant suffered a T11 fracture in the accident of
8 May 2020.Upon review of the medical documentation, the Panel found no indications or evidence of radiculopathy.
The Panel agrees with the comments of the Medical Assessor when he says;
“The subsequent x-rays if another level was involved, would need to show 2 levels of wedge compression, which simply isn’t the case. However, pertaining to the vertebra at T11, no such injury has occurred and the claimant has not sustained any injury to the T11 vertebra which would qualify for a non-minor injury.
What has happened is that a fall in May 2022 with post x-rays indicate a compression fracture at an entirely new level T12.”
If the thoracic vertebrae are correctly counted and if the X-ray of 16 July 2014 is reviewed, the T10 fracture is incorrectly designated. This is actually a fracture at T11, and not T10, given that the claimant has six lumbar vertebrae.
The X-ray report of 16 July 2014 cannot be relied upon. Dr Chung, radiologist, provided an addendum report of 17 June 2020 to his report of 16 July 2014. He said;
“Review of the images was performed as requested. Comparison was made with previous examinations of 16/07/2014 and 06/11/14. The previous examinations, lower most lumbar style that is designated L5, although it is noted today. On today’s examination, this vertebra was designated S1 (ie partially lumbarised S1 vertebra), in light of correlation of the appearances of the thoracic and lumbosacral spine x-rays. This accounts for the differences in labelling of the thoracic vertebrae. Therefore the minor compression fracture at T11 is unchanged.”
Dr Chung went on to say, regarding an X-ray of the thoracic spine that there was a 25% anterior compression fracture of T11. He said that no other compression fractures were seen.
The insurer says that correcting this identification error by the radiologist is not to say that there was no fracture of the T11 disc following the 2020 accident. Rather, the insurer says that the fracture of the T11 disc was incorrectly identified as the T10 disc in the 2014 reports. As a result, the insurer says that the T11 fracture seeing in the 2020 X-ray demonstrates the same injury that was identified in 2014. The Panel agrees.
While the claimant said she suffered fractures to her T9 and T10 vertebrae previously, this was not correct due to a misdiagnosis by a radiologist. That radiologist, Dr Chung, had not seen that the claimant had six lumbar vertebrae. He subsequently corrected the misdiagnosis, so that it was confirmed that the claimant had in fact, prior to the accident, fractured her T10 and T11 vertebrae. Her additional lumbar vertebrae meant a recalibration of her thoracic vertebrae, for the purposes of a correct diagnosis.
Accordingly, the claimant’s allegations that as a result of the accident on 8 May 2020, she fractured her T11 vertebra, on the basis of radiological scans, is incorrect. The fracture of the vertebra was already there.
All the scans of 16 July 2014, 16 October 2014, 6 November 2014 and 25 November 2014, incorrectly referred to the T10 vertebra when it should have been correctly referred to as the T11 vertebra.
The Medical Assessor has merely corrected a mislabelling of a vertebra, which was verified by Dr Chung in his addendum report.
As the Medical Assessor said, the T10 vertebra, correctly counted, never sustained a crush fracture in 2014 but it was the T11 vertebra all along. The wedge compression fracture was mislabelled as T10 and not T11. A comprehensive viewing of all relevant X-rays and scans confirms this. The panel is satisfied about this conclusion.
The comparison scan by the radiologist on 17 June 2020 compared with the 2014 X-rays noted that the previous examinations stated the lower most lumbar vertebra was designated at L5 (it should have been designated as L6). With correct designation, the vertebral compression fracture referred to relates to T11 pre-existing pathology as opposed to T10 which does not appear to have incurred any wedge compression fracture.
As the Medical Assessor said also, if there was to be involvement of T10 and T11 vertebrae as previously diagnosed then there would have been a reported two level wedge compression, which is not the case.
Furthermore, the fracture as reported, post-accident, in 2020 does not seem to have changed since the imaging result of 2014 which indicates that the report had exactly the same pathology at the same level.
The X-rays confirm no further fracture involving the T11 vertebra. There was no change from 2014. The panel confirms that it is its finding that the accident on 8 May 2020, the claimant’s thoracic spine at the T11 vertebra did not sustain a fracture although she may have sustained a soft tissue injury. The claimant has suffered a threshold injury. There is no evidence of radiculopathy.
Conclusion
The Panel is not satisfied that the claimant has suffered any fracture to her T11 vertebrae as a result of the accident on 8 May 2020.
Consequent upon this, the Panel is not satisfied that the complaints of the claimant are causally related to the accident of 8 May 2020.
Determination
The Panel affirms the certificate and reasons of Medical Assessor Kenna dated
6 March 2023.The claimant has suffered a soft tissue injury only to her T11 vertebra which is a threshold injury.
[BG1]check
[AB2]Amended
[BG3]check
[AB4]OK, correct
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