Warner v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 570
•15 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Warner v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 570 |
CLAIMANT: | Kevin Warner |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Geoffrey Stubbs |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 15 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to whole person impairment arising from injuries caused by accident; claimant’s motor scooter was stationary at a round-about when it was hit from behind by the insured’s vehicle; claimant was thrown backwards and onto the bonnet of the insured vehicle; claimant’s lower back and coccyx struck the windscreen; he suffered a hyper-extension injury to his upper back and neck, hitting the back of his head on the roof of the vehicle; claimant slid off the vehicle onto the roadway; claimant was wearing all protective gear including a helmet; claimant had no loss of consciousness; claimant says he was immediately aware of pain up and down his neck and back; insurer admitted liability for the claim; insurer did not dispute assessment of lumbar spine; insurer disputed causation of cervical spine impairment; re-examination confined to cervical spine by agreement; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 20 December 2023 and issues a new certificate determinig that: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%: · lumbar spine – multiple fractures, and · cervical spine – aggravation of pre-existing asymptomatic spondylosis. |
STATEMENT OF REASONS
INTRODUCTION
Kevin Warner (the claimant) was involved in a motor vehicle accident that occurred on 14 June 2019 at Glendale (the accident). The claimant’s motor scooter was stationery at a round-about when it was hit from behind by the insured Commodore sedan. The claimant was thrown backwards and onto the bonnet of the insured vehicle. His lower back and coccyx struck the windscreen. He suffered a hyper-extension injury to his upper back and neck, hitting the back of his head on the roof of the vehicle. He then slid off the vehicle onto the roadway. The claimant was wearing all protective gear including a helmet. He had no loss of consciousness. He says he was immediately aware of pain up and down his neck and back.
The claimant was taken by ambulance to John Hunter Hospital where he was admitted. An X-ray showed a fractured L1 vertebra. He was treated for his general pain and put in a thoracolumbar solid brace the next day. He mobilised with the help of a physiotherapist. He was discharged and driven home by his wife to rest.
NRMA (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer admitted liability for the claim.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2, cl 2(a) of the MAI Act, the following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Murray Hyde-Page for assessment:
· cervical spine – injury to his neck in the nature of aggravation of pre-existing, albeit asymptomatic, degenerative changes and, further and alternatively, a soft tissue injury, and
· lumbar spine – multiple fractures to the lumbosacral spine.
Medical Assessor Hyde-Page certified on 20 December 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 10% and IS NOT GREATER THAN 10%:
- Lumbar spine – L1 compression fracture
Medical Assessor Hyde-Page made no adjustment for pre-existent or subsequent injury/impairment.
Although Medical Assessor Hyde-Page found that the referred cervical spine injury was not caused by the motor accident, he did not so certify.
THE REVIEW
The claimant sought a review of Medical Assessor Hyde-Page’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant does not allege any error in relation to the assessment of the lumbar spine. The claimant submits that the application for review is confined to the assessment of the cervical spine. However, having regard to the provisions of s 7.26(6) of the MAI Act, the review cannot be so confined, unless the insurer agrees.
The claimant submits that Medical Assessor Hyde-Page fell into error as he:
(a) failed to put observed inconsistencies to the claimant, in that he seemed to stiffen up during the formal examination, relative to the medical assessor’s observations during the interview, and
(b) failed to take relevant considerations into account when determining causation of the cervical spine injury.
The claimant refers to paragraph 6.5, 6.6 and 6.120 of the Guidelines, as well as Chapters 2 and 3 of the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition.
The claimant submits that the Medical Assessor did not address the history contained in the claimant’s statement, nor the records of Toronto Private Hospital, in relation to the report of complaints of neck pain.
The claimant’s review application was opposed by the insurer on various grounds.
As to the first ground, the insurer submits that the medical assessment would not have been different had the Medical Assessor brought the inconsistent clinical findings to the claimant’s attention. In any case, the insurer submits that it is not apparent that the Medical Assessor didn’t put those to the claimant. The insurer further submits that nowhere in the Medical Assessor’s reasons did he say that he did not believe that the claimant was not suffering from real symptoms to his cervical spine at the time of the examination.
As to the second ground, the insurer submitted that the Medical Assessor did consider all relevant evidence and the history of the claimant’s injury. The insurer says there is no evidence that the Medical Assessor failed to consider that evidence. The insurer references the Toronto Private Hospital discharge summary dated 25 February 2020 as containing no mention of any injury to the neck.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 22 March 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The bases of that decision were stated as follows:
· it appears that the Medical Assessor determined causation on the basis that there was no frank injury to the claimant’s cervical spine and that there was no written evidence of contemporaneous complaint of cervical spine pain, and
· there is no indication that the Medical Assessor considered whether the claimant’s onset of symptoms arising from underlaying generalised severe cervical spondylosis could have been caused by the accident.
The President’s delegate was satisfied that the claimant’s submissions gives reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Accordingly, the review application was accepted and was referred to the Review Panel, which was to re-assess all of the injuries referred to the original Medical Assessor, unless the parties otherwise agree. The parties subsequently agreed that the physical re-examination of the claimant could be limited to the cervical spine.
The Review Panel wishes to be provided with the following additional material:
(a) bone scan dated 13 February 2020;
(b) ambulance records, and
(c) written clinical notes from Toronto Private Hospital relating to the claimant’s admission and treatment.
An issue for clarification is the reason for the delay in reporting symptoms in the cervical spine.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Review Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Claimant’s review submissions dated 31 January 2024 (previously summarised).
(b) Claimant’s submissions dated 19 April 2023 in support of whole person impairment (WPI) assessment:
The claimant says that it was a serious accident in which he suffered:
(i)multiple fractures of his lumbosacral spine, and
(ii)an injury to his neck in the nature of an aggravation of pre-existing, albeit asymptomatic, degenerative changes and, further and alternatively, a soft tissue injury.
The claimant relies upon the medical opinion of Dr Alan Hopcroft who assesses the claimant to be over the threshold, providing an assessment of impairment for the lumbosacral fractures and neck injury.
The claimant then deals with the opinions expressed by the insurer’s qualified orthopaedic surgeon, Dr Richard Powell, who initially assessed 10% WPI for the lumbar spine and 5% WPI for the cervical spine. Dr Powell subsequently resiled from that assessment, following further communication from the insurer, or its solicitors. The claimant says that the opinion expressed by Dr Powell in his supplementary report is based on a number of assumptions which are incorrect, having regard to the objective evidence, and the opinion expressed in his initial report.
(c) The claimant’s statement dated 29 March 2023:
“Suddenly and without warning, I was struck from behind by a car. My scooter was knocked forward and I was thrown backwards over the bonnet of the vehicle, striking the windscreen of the car with my tailbone and lower back in a seated position. My neck bent back over the top of the windscreen to the degree that my head struck the roof of the car. As the car stopped, I was then plunged forward. I slid down the windscreen onto the bonnet and then toppled onto the roadway. I was dazed by the impact but I did not lose consciousness. I noticed immediately that my tailbone, back and neck were painful…… Since the accident occurred, I have consistently experienced neck pain and stiffness on both sides of my neck, though generally worse on the left. Further, since the accident occurred, I experienced pins and needles on the outer two fingers of each of my hands. I get tightness and pain running from my neck down and across the top of my shoulder and, at times, down to my elbow…… I have had treatment for my neck.”
(d) The claimant’s supplementary statement dated 7 June 2024:
“Ambulance Officers viewed dashcam footage of the accident, supplied by a witness. The ambulance officer stated to me words to the effect that it would be remarkable if my neck were not broken. He prodded and probed by neck. Once I was taken to John Hunter Hospital, scans were taken of my entire spine, including my neck. Hospital staff advised me they had not found any fractures of my neck but had done so in relation to my lower back and coccyx. Thereafter, that became the focus of their attention notwithstanding that my neck was stiff and painful.”
(e) Reports dated 13 October 2021, 15 November 2021 and 10 March 2022 by
Dr Alan Hopcroft, general orthopaedic surgeon, to the claimant’s lawyers.Dr Hopcroft records that the claimant struck his head, with great violence, against the windscreen of the at-fault vehicle, going over the top of the car and then rolling back down onto the bonnet, and onto the roadway. Dr Hopcroft records that the mechanism of injury was recorded by dashcam footage of the accident. The claimant told Dr Hopcroft that he recalled having severe back pain, pain in his coccyx and severe neck pain, at the time of his admission to John Hunter Hospital. Dr Hopcroft opines that the claimant suffered a fracture of his first lumbar vertebrae which went from a 25% wedge compression fracture to a 35% anterior wedge compression due to the fact that he was mobilised prematurely. The claimant’s fractured coccyx was not diagnosed in the hospital but was discovered subsequently. Dr Hopcroft also opined that recent CT scan of the lumbar spine suggests disc disruptions at the L3/L4 and L4/L5 levels which would account for his developing and increasing bilateral paraesthesia in both lower limbs. Dr Hopcroft arranged for diagnostic scans of the cervical spine which showed spondylotic changes resulting in multi-level bilateral foraminal stenosis. Dr Hopcroft opined as follows:
“I believe that the injury suffered in the motor vehicle accident has a severely aggravated this patient’s cervical spondylotic problem, and can account for the significant symptoms he has in his neck and upper limbs as a result of his head striking the windscreen of the vehicle.”
Dr Hopcroft assessed 10% WPI for the lumbar spine (Diagnosis-Related Estimates (DRE) Lumbar Category III), 5% WPI for the cervical spine arising from significant symptoms and a non-identifiable radiculopathy in his upper limbs (DRE Cervical Category II) and 5% WPI for the fracture of the L3 spinus process (coccyx), giving a combined 19% WPI.
(f) Report dated 4 January 2023 by Dr Richard Powell, orthopaedic surgeon, to the insurer.
Dr Powell recorded that the claimant reported ongoing symptoms involving the cervical and lumbar spine. Those symptoms are detailed. Dr Powell further recorded the claimant’s denying any prior injuries involving his neck or back.
Dr Powell records his findings upon examination of the cervical and lumbosacral spine. Range of motion was restricted. Neurological examination was normal. Dr Powell notes the diagnostic reports without viewing the actual films. Dr Powell gives the following diagnosis:“1. Musculoligamentous injury of the cervical spine and aggravation of multi-level changes of cervical spondylosis.
2.Lumbar spine injury incorporating the following:
·Anterior: compression fracture of L1 with 33% loss of vertebral body height
·L3 spinus process fracture
·Coccygeal fracture
Dr Powell assesses 5% whole person impairment for the cervical spine and 10% whole person impairment for the lumbar spine.”
(g) Reports (x5) by Dr Lee Laycock, rehabilitation physician, to Dr Holford. These reports span the period from 1 November 2019 to 7 September 2020 detailing treatment to the claimant’s lower back and lower limb muscles. There is no mention of injury to, nor treatment of, the cervical spine.
(h) Report dated 5 November 2020 from Dr David Holford to the claimant’s lawyers. This deals with the crash fracture of the L1 vertebrae and subsequent treatment.
(i) Report dated 15 July 2022 by Dr Peter Corrigan, consultant psychiatrist, to the insurer.
This deals with the psychological/psychiatric sequalae of the motor accident, and their treatment, which are not of relevance for the Review Panel’s consideration.
(j) MRI cervical spine reported on 28 October 2021 by Dr Janke (previously referenced).
(k) John Hunter Hospital Discharge Summary dated 15 June 2019.
There is no mention of injury to the cervical spine.
(l) Toronto Private Hospital Discharge Summary.
There is no mention of injury to, nor treatment for, the cervical spine.
(m) The Boulevarde Family Practice clinical notes from August 2011 to 15 June 2022.
There is no specific reference to complaint of, nor treatment for, the cervical spine following the motor accident.
(n) Toronto Private Hospital rehabilitation treatment chart.
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s submissions dated 15 February 2024 in reply to application for review (previously summarised).
(b) Insurer’s WPI submissions dated 16 May 2023.
The insurer reviews the primary medical records and the report dated 16 February 2023 by Dr Richard Powell, orthopaedic surgeon. Dr Powell opined that, on the balance of probabilities, there is not sufficient evidence to conclude that the claimant suffered any significant injury to the cervical spine in the accident. Dr Powell considered it is more likely that the claimant’s current symptoms reflect the underlying degenerative cervical spine condition rather than as a result of injuries sustained in the accident.
The insurer submits the claimant’s neck symptoms are not related to the subject accident and submits that there is no evidence of related WPI given the lack of complaints in the contemporaneous medical material.
(c) Report dated 4 January 2023 by Dr Richard Powell, orthopaedic surgeon, to the insurer (previously summarised).
(d) Further report dated 16 February 2023 by Dr Powell to the insurer.
Dr Powell agrees that the evidence provided does not support the claimant’s having sustained a significant injury to the cervical spine through the motor accident. He was reviewed on multiple occasions at multiple facilities by a number of doctors and healthcare professionals though, with the exception of the ambulance report, there is no direct reference to the cervical spine and no indication of him having sustained a significant injury. On the basis of available evidence and the balance of probability, I would consider it more likely that his current symptoms reflect the underlying degenerative cervical spine condition, rather than being the result of injuries sustained in the subject accident.
RE-EXAMINATION
The claimant was assessed on 11 June 2024 by Medical Assessor Geoffrey Stubbs whose report is as follows:
Kevin Warner R-M20361/24-02-1 – panel review of single medical assessment for cervical spine injuries to his neck in the nature of aggravation of pre-existing, albeit asymptomatic, degenerative changes and further alternatively a soft tissue injury and lumbar spine multiple fractures to the lumbar spine. Medical examination at the PIC on 11 June 2024 Mr Warner attended alone.
Background: – at the time of the motor vehicle accident June 2019 Mr Warner was 66 years old and a retired civil engineer formerly working for the local Shire Council. His wife had suffered from some depression for some years prior leading to an early retirement so that he could act as her carer.
Mr Warner was fit and well and part of a crew of a 30 foot yacht regularly raced at Port Macquarie. He walked regularly for physical exercise. He had suffered no disabling injuries prior to the motor vehicle accident though he did have some problems with reflux and high cholesterol and took medication for this. He also spent some time helping his son with home renovation.
The accident occurred whilst he was stationary on his moped at a roundabout. He was hit from behind by a cab four utility, thrown up into the air and onto the bonnet of the utility striking his head against the windscreen before falling off. He was wearing a full face helmet and did not suffer from loss of consciousness. His recollection agrees with the ambulance report. He was struck from behind by at about 40 km/h. Landed on the bonnet of the car and rolled onto the ground. GCS 15, pain to the lumbar hip region with minimal damage to the full face helmet. Cervical spine was stabilised with sandbags and transported to the John Hunter Hospital.
He was assessed at the John Hunter Hospital. He had a compression fracture of LV 1. This was stabilised by spinal brace was allowed home the following day with Endone for pain relief. The 10% WPI from the lumbar fracture is not disputed. He continued to have neck pain and stiffness. He convalesced at home in a spinal brace and slowly improved. He was driving again at around six months for short distances though he never returned to riding his moped. His neck and back pain resolved enough for him to resume sailing (as a passenger) two years after the accident and a further 12 months later resume limited duties as part of the crew. He has had to roll onto his back to look up as his neck remains stiff and he is unable tilt his head up enough to see the masthead. He is taking occasional over-the-counter analgesics but is taking a selective noradrenaline uptake inhibitor because of some depression following the motor vehicle accident. He underwent a course of rehabilitation and hydrotherapy in an indoor pool in Toronto. He gets remedial massage to the neck and back stiffness time to time. He attended the PIC rooms alone having driven to Morissett from his home by car and then to Sydney by train.
Clinical examination – Mr Warner is helpful and cooperative in the clinical exam. He can dress and undress himself. He stands 181 cm tall and weighs a muscular 101 kg. He can tip toe and heel toe walk without difficulty, squat to 90° of hip and knee flexion and perform sustained single leg stance.
Cervical spine – is principally troubled by limited and asymmetrical movement. Total range is at best half normal, extension is particularly restricted, he can barely tilt his head back. Side bending and rotation to the left are also noticeably reduced. Traction signs are negative but he has a strongly positive Spurling’s test with accompanying spasm. Neurological examination of the upper limbs shows equal girth of the arms at 35.5 cm and the forearms 34 cm. Grip strength is 5/5, sensation is normal and the reflexes are brisk and symmetrical. There is no radiculopathy present. There is asymmetry and spasm in movement. DRE 2 – 5% WPI
Examination of the thoracic and lumbar spines shows a rather flat back consistent with lumbar wedge compression fracture. Otherwise, the lumbar spine moves symmetrically to ¾ range all directions with the thoracic rotation the best preserved movement. Girth of the lower limb is right and left thighs and 43 cm right and left calves. Reflexes are brisk and symmetrical, straight leg raising is 70° right equals left with a negative traction sign and there are no sensory changes. Mr Warner has done well with the spine injury. As previously been assessed as a wedge compression fracture between 20 and 50% compression – DRE 3 – 10% WPI.
General examination of the upper and lower limbs is normal for age.
The issue in dispute is the cervical spine injury. Mr Warner had with him hard copy of a regional bone scan and SPECT performed on 13 February 2020. This showed moderate isotope uptake all regions of the spine. Uptake was most intense in the mid lumbar region consistent with residual activity from the mid lumbar compression fracture. Some clinically undetectable thoraco- lumbar scoliosis concave to the left was noted. There was no specific focus isotope uptake cervical spine but rather generalised uptake consistent cervical spondylosis. The imaging is 13 months after the accident and any increased isotope activity occasioned by the accident has resolved. The clinical examination shows specific restrictions of movement especially in extension and side bending and rotation to the left, spasm and a positive Sperling’s test but no radiculopathy. The history of the accident is of head neck strike against the windscreen of the vehicle that hit him. The subsequent clinical presentation has been dominated by the lumbar fracture and contemporaneous injury to the neck has received less attention. It is noted that the ambulance record notes the stabilisation of the neck with sandbags as part of the initial triage. It is entirely likely that there was an injury to the cervical spine caused by the accident which could be best described as an aggravation of pre-existing cervical spondylosis. Whether there were some asymmetry of movement of the cervical spine already present is not known but it is noted that there were no functional problems with neck movement when Mr Warner was crewing the racing yacht and now there is. The clinical grade is DRE 2 for a further 5% WPI. No deduction can be made.
The claimant was interviewed on 22 July 2024. Present were Member Patterson, Medical Assessor [BG1] Oates and Medical Assessor Stubbs.
A series of questions were put to the claimant and his response recorded.
1. On the claim form dated 24/6/2019, there was mention of an L1 fracture, but no mention of a neck injury. Why is this?
The claimant said, because when I had the accident, the Ambulance officers were convinced I had a broken neck. Hospital x-rayed this part and found there was no fracture in the neck, only in the back. And after that no notice was taken of my neck. The claimant added that at the time of the accident on scene he thought his back included his whole spine and neck and hips.
2. In the ambulance record dated 14/6/2019, there was mention of a pre-existing muscular condition of the neck causing pain for him if the head is not tilted forward, meaning that a collar could not be applied. And therefore, this was not applied and his neck was stabilized in sandbags. And the record also records complaints of pain in the lumbar spine and hips. And there was note of minimal damage to the helmet with potential for a neck injury.
The Panel asked for his comments on this.
The claimant said the pre-existing muscular condition referred to a neck curvature due to his age. And that the neck was found to be protruding more so than usual after the accident. He said the damage to the helmet was only one scratch.
He said, at the time of the accident, his buttocks hit the windscreen and his back catapulted up onto the roof of the car. With his helmet, flung back onto the roof of the vehicle, and this hyper extended his neck, causing a whiplash.
He then rolled back onto the bonnet of the car and off onto the road. He did not see the windscreen so he does not know if it was damaged. The claimant said the ambulance officers, and, possibly the police, had viewed dash cam footage of a motorist who was present at the scene. So, he was able to piece together the sequence of events after he was hit by the vehicle.
3. The John Hunter Hospital discharge summary dated 15/6/2019, indicated complaints of low back, pain and hip pain at 5 out of 10 at triage. It said he was hit from behind rolled up onto the bonnet, then rolled onto the road and sustained an L1 compression fracture. Treated with a TLSO brace. The diagnosis given was L1 fracture, but no other injuries were noted. The insurer referred to a handwritten note dated 15/6/2019 stating ‘no tenderness in skull or cervical spine.’ The claimant was asked for his comment.
He replied that he was unaware of and could not explain the handwritten record indicating no tenderness in the skull or neck. He added that he barely saw the consultant during his short stay in the hospital and things were handled by his registrar who did not really know much of what was going on.
4. Referring to the Rehabilitation reports of his treating specialist Dr. Laycock, dated 1/11/2019, 18/12/2019, 19/2/2020, 25/3 /2020, 1/6/ 2020 and 7/9/ 2020, the history of accident in the first injury, was that he landed heavily on his buttocks on the bonnet of the car, which had collided with him. And then he rolled onto the side of the road but was not knocked out and had a good recollection of events. There was no reference to neck injury or neck symptoms, only the L1 fracture for which he was sent to hydrotherapy. A bone scan done on 13/2/2020 showed additional injuries of fractured coccyx, and fractured, L3, spinous process and probable muscle disruption at L5, but no mention of neck. And then he was to upgrade to a trial of exercise physiology.
After discharge from Rehabilitation in the report of June 2020, it was noted that he had rolled his right ankle on 14/5/2020, whilst exercising doing step ups and that he still complained of middle back pain to tailbone and left leg sciatica And in the report of 7/9/2020 there was left groin pain, which was self-limited occurring in June and July 2020, along with sleep difficulties for which he needed a new mattress and replacement of CPAP machine. But again, there was no reference to the neck.
The claimant responded that Dr. Laycock's reports focused more on his back because that was the main area of interest of his treating specialist.
He said perhaps Dr. Laycock's reports could have been fuller and they were dictated on the hop in front of him, and perhaps, he had only dictated the minimum.
5. The claimant was referred to Dr. Holford, (the GP) solicitor's report dated 5/11/2020 referring to crush injury fracture of L1, but no mention of the neck and he was asked for a comment.
The claimant said he could not move his neck. So does not know why Dr. Halford did not refer to the neck. He suspects that the stiffness through his whole spine was blamed on lumbar injuries.
6. Toronto private Hospital Rehabilitation where he attended between 2/10/2019, and 18/2/20 for 28 sessions in all, comprised all back and core muscle exercises, until 29/11/2019, when there was the first mention of neck exercises on the exercise sheet. The panel asked the claimant if the neck had just become a problem at that time. And if not, why was there a delay in setting up exercises for the neck? Further to this, the discharge summary of 25/2/2020, only referred to the L1 compression fracture from the MVA but no other injury.
The claimant said that he could hardly walk in the early stages of Rehabilitation and that the aim was to get him mobilized first, by concentrating on his back and lower body before attention could be given to the neck. Whilst he was in the TLSO brace, he could not drive.
The panel asked whether the brace had extended up high enough to require a chin rest. He said he could not recall as he had not looked at the brace for five years.
7. The records of Boulevard Family Practice covering 2011 to 2022 were mentioned.
The first post-accident entry was 17-6 2019 where reference was made to a compression fracture, eventually identified as L1, with tingling and numbness and pain in the buttocks, but there was no mention of the neck. Then there were regular visits, and on 23-8 2019, there was reference to a review by Dr. Edger, the treating neurosurgeon, who only mentioned back pain and stiffness, with no reference to the neck. At this stage, he was referred to Rehabilitation with Dr. Laycock, and there was still no neck complaint. It was not until 4/5/2020 that there was first GP record of neck symptoms, 11 months after the accident. When it was mentioned, he was having physiotherapy for the neck stiffness, which had been slow to respond.
The claimant referred to the first visit on 17/6/2019. He said, he couldn't move his whole body, including his neck as all his spinal muscles had locked up. He does not know why the GP did not mention it. He said he saw Dr. Edger two or three times and does not know why he did not mention the neck pain. He had x-rays, which showed the lumbar fractures had healed. He says Dr. Edger told him it would take two years to get over the associated nerve damage from his injuries and that he had to vary his posture frequently, because his whole back and spine, including the neck, were affected by the nerve damage and this even was suspected as the cause for a bout of diarrhoea. He said that with reference to the entry in the GP record of 4/5/2020, that the exercise physiologist was Chloe from Be Active in Newcastle. He was taken to Anytime Fitness in Toronto once a week in the gym and once a week in the hydrotherapy pool, for 6 months, but there was disruption because of the covid lockdowns. When he couldn't attend, the gym and hydro pool, he did home exercises as he was anxious to improve and return to his work, and hobby of ocean sailing.
8. Referring to Dr. Hopcroft's, (the IME retained by the solicitor) report of 13. 10 2021: There was a history recorded of striking the head against the windscreen violently. Also reference to 12 months post-accident in June 2020, a Water Board worker had come to do a job at the claimant's house, or check something, and told him that he had been present at the scene of the accident and had dash cam footage. This was repeated to Dr. Hopcroft and included in the report. The panel asked the claimant, where the dash cam footage was.
The claimant replied that he understood it had been recorded over. The claimant did not know whether both ambulance and police had seen the footage. Although ambulance officers had discussed it with the claimant.
The claimant agreed that the mechanism of the injury was misrecorded by Dr. Hopcroft in that his buttocks, hit the windscreen then his head hyperextended onto the roof of the car.
9. Referring to the claimant's statement of 29/3/2023, the claimant had stated that his head struck the roof, not the windscreen, which differed from the account given to Dr. Hopcroft. The claimant was asked for his comment.
He says this statement with the record of accident was correct and not Dr. Hopcraft's report.
10. With respect to the Certificate prepared for the Commission, by Medical Assessor Hyde Page dated 20/12/2023 which recorded that he hit his lower back and coccyx against the windscreen and hit the back of his head on the roof.
The claimant replied that this is the correct history of the sequence of events after he had been hit from behind by a car whilst on his small scooter.
11. Referring to the claimant's second statement of 7/6/2024, which refers to dash cam evidence, the Panel asked why this had not been referred to in the ambulance report and where that evidence was now. Also the claimant said that imaging of his neck was done at the hospital and he was told there was no fracture of the neck. Yet this was not recorded in the John Hunter Hospital discharge record available to the Panel. The claimant was asked for his comment.
The claimant said, as far as he knows, he did have imaging of the neck and he remembers being told that the neck imaging was clear, after which no further attention was given to the neck. He is adamant that the neck symptoms started on the day of the accident and continued. His whole spine was rigid. He started seeing Paula Tiffany, a remedial therapist at Morrissett, a couple of years after the accident, when he was still unhappy with his progress. He is still attending this therapist After seeing the therapist, she suggested that he should see a psychiatrist or psychologist, because his emotional status was not good.
12. The claimant was asked about subsequent injuries and said the only one which had occurred was when he rolled his ankle doing step up exercises for his spine, and that he had had no subsequent injury to neck or back. He said the ankle was only a soft tissue injury confirmed after imaging and it had resolved.
Comment
Despite inconsistent histories of the mechanism of the accident and missing pieces of information, such as dashcam footage, after speaking, with the claimant, the Panel was of the opinion that there was potential for a hyperextension, soft tissue injury of the cervical spine to have occurred during this accident.
And after it was cleared, the neck had assumed a secondary importance, because the focus of treatment was on the fractures in the lumbar spine at L1, L3 and Coccyx.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of the Medical Assessors.
[5] Section 7.26(6) of the MAI Act.
The Review Panel is not required to choose between competing medical opinions and is required to for its own opinion.[6] The Medical Assessors have explained the basis of their assessment which differs to that of Medical Assessor Hyde-Page.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel is satisfied that the accident caused the claimant to suffer aggravation of cervical spondylosis for which the appropriate impairment category is assessed to be DRE category II (5% WPI), as a matter of medical determination, and as a matter of factual non-medical determination.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate dated
20 December 2023 should be revoked. The new certificate appears at the commencement of these reasons.
[BG1]Is this part of report or new paragraph ? Check numbering
0
2
0