| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Wood v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 321 |
| CLAIMANT: | Joshua Mark Wood |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 21 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Harrington of 11 June 2021; claimant injured on 10 June 2015; dispute relating the whole person impairment assessment where MA Harrington found 0% whole person impairment (WPI) for injuries to the claimant’s hip and lumbar spine on the basis the injuries had resolved; claimant previously examined for treatment and care determination by MA Machart who found that surgery by way of a right L5/S1 rhizolysis was reasonable and necessary and causally related to the accident; claimant submitted the Panel was bound to follow that assessment; claimant did not seek immediate treatment following the accident and saw his GP six weeks after the accident; claimant developed right sided sciatica 2 years post-accident and attributed this to the accident; claimant had a motor bike accident in 2016 causing injuries requiring hospitalisation and then a Thai massage in July 2017 when the masseurs knee pushed down on the claimant’s right gluteal area with acute increase in low back pain; Panel not satisfied that MA Machart had all relevant material before him when making his determination; Panel satisfied that the claimant’s right hip disability was not related to the accident and was caused by subsequent events; Held – Panel not bound by the decision of MA Machart; the claimant’s right sided L5/S1 lesion developing two years post-accident was not related to the accident; surgery by way of an L5/S1 microdiscectomy was not reasonable and necessary due to the accident but might have been reasonable and necessary due to intervening events; claimant had a DRE 1 category soft tissue injury to his lumbar spine; claimant had 0% WPI; certificate and reasons of MA Harrington revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Harrington for the reasons given. 2. The Panel adopts the clinical examination findings of Medical Assessor Harrington which are consistent with DRE lumbosacral category I – 0% WPI, and 0% WPI arising from the right hip. |
STATEMENT OF REASONS
INTRODUCTION
The claimant seeks a review of the assessment of Medical Assessor Harrington (the Medical Assessor) dated 11 June 2021.
The medical assessment matter referred to Medical Assessor Harrington for determination was whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%.
There is a dispute between the claimant and the insurer about:
• the degree of permanent impairment under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (the Act).
The following injuries were referred by the Personal Injury Commission (Commission) for assessment of whole person impairment (WPI):
· hip - soft tissue injury to the right hip, and
· lumbar spine - soft tissue injury.
The Medical Assessor assessed 0% WPI on the basis that the injuries to the right hip and lumbar spine had resolved and that an assessment of degree of permanent impairment of the injuries was not required.
The claimant had earlier been examined by Medical Assessor Machart who provided a Certificate of 6 May 2020. The Medical Assessor found that surgery by way of a right L5/S1 rhizolysis undertaken on 5 April 2028 was causally related to the accident on
10 June 2015.
The accident
The accident occurred on 10 June 2015 at about 4.00pm. The accident occurred at the corner of Northcott Drive and Park Avenue, Kotara, near Newcastle. The insured vehicle has approached an intersection with stationary traffic and braked. However, this caused the insured car to slide into the rear of a vehicle immediately in front and in turn, this pushed that car into the back of a vehicle which has then hit the back of the claimant’s vehicle in front. Airbags in the claimant’s car were not deployed.
The Panel has seen a repair quote of 3 April 2020 for $10,489. It is understood that the claimant’s car was written off for insurance purposes. Photographs of the damage do not appear however, to show considerable damage.
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.
The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46].
BACKGROUND
The claimant underwent a right L5/S1 microdiscectomy by Dr Sears in April 2018.
The insurer disputed that the operative treatment was reasonable and necessary in the circumstances and related to the injuries caused by the accident.
Medical Assessor Machart determined that the treatment received was reasonable and necessary in the circumstances and that the treatment related to the injuries caused by the accident.
The insurer then sought a review of the certificate but was unsuccessful.
In October 2020, the claimant filed an application for determination of a WPI dispute. It is this medical assessment certificate of Medical Assessor Harrington which is the subject of this review application.
The Medical Assessor did not believe the treatment by Dr Sears or his presentation of complaints was attributable to the accident in June 2015. The Medical Assessor said “If Mr Wood suffered a soft tissue injury of the lumbar spine, ample time has certainly passed for this to resolve. I do not believe the development of possible sciatica some 9 months later is associated to the subject motor vehicle accident”.
Claimant’s submissions
The claimant submits that the Medical Assessor failed to consider the relevant evidence and failed to provide adequate reasons.
The claimant submits that in complete contradiction to the causation findings of Medical Assessor Machart, the Medical Assessor found, under point 17, ‘Summary of relevant documentation’;
“He may well have developed sciatica which he has associated to a minor car accident in June 2015 however this is not consistent with a pathological process.”
The claimant submits that the conclusion of the Medical Assessor is made without reference or regard to the findings of the first Medical Assessor. The claimant submits that the Medical Assessor does not even mention the causation findings of the first Medical Assessor throughout the entire body of his report. The claimant says that this gives rise to error as the Medical Assessor determined the WPI dispute solely on the basis of his own findings of the contested issue.
The claimant says that where the Medical Assessor determines the issue solely upon his findings on a contentious issue, he is obligated to provide a clear path of reasoning for his conclusions. The claimant submits that one would expect he would at least attempt to grapple with why he asserts his finding is correct and the finding of the first Medical Assessor is incorrect.
The claimant submits that it is entirely unclear why the Medical Assessor asserts the development of sciatica over time “is not consistent with a pathological process”.
The claimant says that the Medical Assessor went on to comment;
“If Mr Wood suffered a soft tissue injury of the lumbar spine, ample time has certainly passed for this to resolve. I do not believe the development of possible sciatica some 9 months later is associated to the subject motor vehicle accident.”
The claimant says that such a finding is entirely inconsistent with the findings of the first Medical Assessor and yet the path of reasoning of the second Medical Assessor for his contradictory finding is entirely unclear. The claimant submits that it is simply a conclusion without any basis or foundation provided.
The claimant says that the causation findings of the first Medical Assessor were not the subject of any successful review.
The claimant submits that the first Medical Assessor provided clear reasons for his findings as to causation. The claimant says that these reasons were before the second Medical Assessor. The claimant says that the Medical Assessor came to a contradictory conclusion without providing any clear path of reasoning and without acknowledging the findings of the first Medical Assessor.
Secondly, the claimant says that there has been jurisdictional error - in that, with respect to the assessment of the lumbar spine and its causation, the Medical Assessor has impermissibly treated the absence of contemporaneous medical records as determinative.
The claimant says that on a broad reading of the reasons of the Medical Assessor, it would appear he has determined causation solely upon the absence of contemporaneous medical records.
The claimant says that two things are to be said in relation to this ground.
Firstly, the claimant says that there is a clear and obvious, and significant, factual error on the part of the Medical Assessor. The claimant says that where it is asserted, “There is no explanation as to why he delayed seeking treatment some 9 months after the accident”, that is quite clearly wrong in terms of the length of time prior to seeking treatment.
The claimant submits that he attended upon his general practitioner (GP) and complained of back pain within six weeks of the accident. He was referred for imaging.
The claimant says that the history of the Medical Assessor is clearly wrong and the history of the first Medical Assessor is correct. The claimant says that these respective histories are reflected in each Medical Assessors’ respective ultimate conclusions as to causation, that is, the incorrect history of the Medical Assessor results in an incorrect finding as to causation; whilst the correct history of the first Medical Assessor resulted in a correct finding as to causation.
Secondly, in the context of a medical assessment under the Act, the claimant submits that there is a substantial body of authority that a Medical Assessor who decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1) of the Act, and that this is jurisdictional error.
The claimant submits that this principle, and the substantial body of authorities, were discussed by Brereton JA in the matter of Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 at paragraphs 31-36, citing, inter alia; AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen (2016) 77 MVR 348; Bugat v Fox [2014] NSWSC 888; Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650, and Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558.
The claimant says that the Medical Assessor has clearly and obviously failed to consider the opinions, findings and conclusive evidence of the first Medical Assessor. The claimant says that he has failed to provide adequate reasons which outline the actual path of reasoning to his conclusions in relation to matters which should have been quite obviously matters of serious contention had he properly considered the first Medical Assessors findings.
Finally, the claimant submits that the Medical Assessor appears, on the face of the record, to have determined the matter solely on the basis of the contemporaneous medical records, which the substantial body of authority has conclusively shown, amounts to jurisdictional error.
Insurer’s submissions in reply to application for review
The insurer says that the claimant seeks a review of the certificate of the Medical Assessor dated 11 June 2021 alleging that the Medical Assessor erred in determining that the claimant’s soft tissue injuries to his lumbar spine and right hip caused by the subject accident have resolved and do not result in permanent impairment.
The insurer says that the Medical Assessor found that the claimant’s surgery, a right L1/S1 microdiscectomy, performed by Dr Sears in April 2018 and the claimant’s current presentation of complaints are not attributable to the subject motor vehicle accident on 10 June 2015.
The insurer refers to the claimant’s submission that the Medical Assessor has fallen into error on two grounds.
Firstly, in respect to a failure to consider relevant evidence/provide adequate reasons, and secondly, an alleged jurisdictional error with respect to the assessment of the lumbar spine and its causation, the insurer notes that the claimant says that the Medical Assessor has allegedly impermissibly treated the absence of contemporaneous medical records as determinative.
Ground 1: Failure to consider relevant evidence/failure to provide adequate reasons.
The insurer says that in the claimant’s application for review dated 6 July 2021, the claimant asserts that the Medical Assessor “came to a contradictory conclusion without providing any clear path of reasoning for same and without even acknowledging the findings of the first medical assessor”.
The insurer says that the mere fact that a Medical Assessor has formed a different opinion is not of itself evidence of error. The insurer says that the claimant concedes that the causation findings of Medical Assessor Machart do not amount to conclusive evidence in the same statutory nature as the finding regarding whether the treatment was reasonable and necessary. As such, the insurer says that the opinion of Medical Assessor Machart is to be regarded as that of any other medical opinion and Medical Assessor Harrington was not obliged to come to the same finding.
The insurer says that in respect to the claimant’s submission, that “It is entirely unclear why the second medical assessor asserts the development of sciatica over time ‘is not consistent with a pathological process’”, the insurer disputes this submission. The insurer notes that Medical Assessor Harrington’s reasoning as to his opinion in this regard, as follows:
“There is no explanation as to why he delayed seeking treatment some 9 months after the accident.
He may well have developed sciatica which he has associated to a minor car accident in June 2015 however this is not consistent with a pathological process.
I have read the reports from Dr Sears however I do not believe a pathological process for his symptoms can be attributed to the accident in June 2015.
A lot of material is contradictory, and I couldn’t find any mention of sciatica in the early acute phase of his injury. He reports that his sciatica came on without intervening injury some 9 months later, ie he reports hip pain which was later diagnosed as a sciatica.
It is also noted on the Personal Injury Claim Form that he submits injuries to his lower back and left side. There is no mention of his right hip or sciatica. If Mr Wood suffered a soft tissue injury of the lumbar spine, ample time has certainly passed for this to resolve. I do not believe the development of possible sciatica some 9 months later is associated to the subject motor vehicle accident.”
The insurer says that in light of the above, it is submitted that Medical Assessor Harrington’s path of reasoning is clear in concluding that the claimant’s right L1/S1 microdiscectomy surgery and the claimant’s current presentation of complaints are not attributable to the subject motor vehicle accident and therefore, it is reasonable for the Medical Assessor to determine that the claimant’s soft tissue injuries to his lumbar spine and right hip have resolved and do not result in permanent impairment.
Ground 2: The Medical Assessor has impermissibly treated the absence of contemporaneous medical records as determinative.
The insurer asserts that the claimant alleges that the Medical Assessor has “determined causation solely upon the absence of contemporaneous medical records”. The insurer says that the foundation for the claimant’s allegation is based on the Medical Assessor’s statement that “There is no explanation as to why he delayed seeking treatment some 9 months after the accident…”. The claimant submits that the history of Medical Assessor Harrington is “clearly wrong”.
The insurer concedes that it is not permissible for a Medical Assessor to find a lack of contemporaneous complaint as determinative. The insurer however, maintains that the Medical Assessor’s consideration of the radiology, the claim form (and no mention of right hip or sciatica) comment on his examination of the claimant and his discussion on the opinion of Dr Sears, demonstrates in the insurer’s submission that an absence of contemporaneous complaint did not form the only basis of his opinion.
The insurer says however, that whilst a lack of contemporaneous complaint in itself is not determinative, it can nevertheless be highly probative and is a factor that a Medical Assessor is entitled to take into account. The insurer says that as stated by Justice Harrison in McHenry v Insurance Australia Limited t/as NRMA Insurance [2019] NSWSC 68:
“the absence of an original contemporaneous complaint as well as the lateness of complaint are matters of fact which in combination the Review Panel is perfectly entitled to take into consideration. The insurer says that it would be unrealistic to exclude such matters from the Review Panel’s assessment. The insurer submits that both the absence of complaint and the lateness of the complaint would also appear in this case to have been persuasive, something that appears to me to be unexceptionable from the Review Panel’s point of view, having regard to the medical experience and expertise that its members are required and entitled to bring to their task. To say that a matter is persuasive, however, is not to say that it was decisive.”
Regarding causation, the insurer referred to s 61 of the Act which relates to the status of medical assessments. It states that:
“(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.
(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by the Commission in respect of the claim concerned.”
The insurer says that the claimant at paragraph 11 of his submissions refers to
s 61(2)(b) of the Act. The insurer says that the section referred to does not exist and that no section can be found that contains specific reference to treatment in this context in any other section of the Act.The insurer refutes any suggestion of an estoppel issue in regard to the determination of a Medical Assessment Service (MAS) WPI assessment after a treatment dispute, as well as any impropriety by the insurer in not referring to Medical Assessor Machart’s Certificate in its MAS submissions. The insurer noted that the claimant had an opportunity to make submissions in this respect. In any event, the insurer submits that as is conceded by the claimant at paragraph 30 of its submissions, the causation findings of a treatment dispute do not bind any subsequent MAS assessment. The insurer submits that judicial authority for this proposition is confirmed by her Honour Justice Adamson in Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104, who indicated that whilst a MAS certificate is conclusive evidence in any court proceedings or in any assessment by a claims assessor, it does not bind other MAS assessors, although may generally be taken into account. Her Honour said that an assessor is obliged to make an independent assessment based on all the material before them. As such, the second assessor was entitled to reach his own findings on causation.
The insurer submits that on this basis the claimant’s submissions in this regard are misleading as they suggest that the Medical Assessor was required to discuss and engage with the opinion of Medical Assessor Machart, which the insurer says is one of many medical opinions. The insurer says that the authority is clear that a Medical Assessor need not refer to each document or part of a document that has been considered – see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 per Basten JA at [22]) and Dunbar v Allianz AustraliaInsurance Limited (2015) 70 MVR 15 at [78]. The insurer says that this is conceded itself by the claimant at para 22 of his submissions.
The insurer says that it is also clear that a Medical Assessor is not bound by the findings of a previous Medical Service assessment. Therefore, the insurer says, the suggestion by the claimant that the certified findings of Medical Assessor Machart are “of continuing effect” is not consistent with judicial authority as discussed above and therefore wrong at law.
It is submitted by the insurer that the claimant cannot argue successfully for a review on the basis that Medical Assessor Harrington has subsequently arrived at a different determination from Medical Assessor Machart. It is also submitted that the Medical Assessor is obliged to rely on his own review of the medical evidence before him and his own assessment of the claimant which was undertaken over one year after Medical Assessor Machart’s assessment.
It is submitted that Medical Assessor Harrington’s assessment of the claimant was conducted in accordance with the Medical Assessment Guidelines, Permanent Impairment Guidelines and the American Medical Association Guides to Evaluation of Permanent Impairment, Fourth Edition (AMA 4).
The insurer also submits that the claimant has not clearly demonstrated if there was any error, which is not conceded, how such an error was material and able to change the Medical Assessor’s assessment.
Regarding the original WPI assessment, the insurer submitted that the accident could not have been a high impact collision noting that the vehicle behind the claimant’s vehicle, the blue Subaru, took the brunt of the impact. The insurer said that the damage to the claimant’s white utility can be described as minimal with some visible signs of impact to the driver’s side rear bumper underneath the rear light.
The insurer said that the photograph of the blue Subaru, which was the middle of the three vehicles involved in the accident, displays some minor damage to the number plate. The insurer says that it is difficult to ascertain from the photograph whether there was further damage. In the event there was, the insurer submits that it cannot be of significance.
The insurer notes that the insured’s vehicle was unable to be driven from the scene of the accident and subsequently deemed a write off. The insurer says that the insured has since sold the vehicle for scrap metal and therefore cannot provide photographs of the vehicle. Three photographs follow and which have been provided by the insurer.
[IMAGES UNABLE TO RENDER]
In relation to the estimate of cost of repair of the claimant’s vehicle, the insurer notes the estimated repair quote by Crashcorp Newcastle dated 3 April 2020 which totals $10,489 of repairs, inclusive of GST.
The insurer submits that the claimant had minimal treatment in relation to the injuries allegedly sustained in the accident. The insurer says that this is consistent with the relatively minor nature of the accident as evidenced from the photographs of the vehicles. The Panel notes that whilst the photographs do indicate minor damage, the cost of repairs was in excess of $10,000 which might indicate otherwise. The Panel, however, is not experienced or qualified to comment on this.
Further, the insurer submits that the claimant had significant delays in attending to treatment for accident-related injuries. The insurer notes the clinical records of
Dr George, after the accident, records that the claimant attended on 24 July 2015, six weeks post-accident in which there is no mention of accident related complaints and instead the claimant was seen in relation to a cough.The insurer notes correspondence from the NSW Police Force dated 22 March 2016, which confirms no police report corresponding to the accident details could be found on file and confirming the police did not attend this accident. The insurer submits that the accident had to have been minor in nature for the police not to attend the scene.
The insurer submits that the claimant’s treating records highlight a delay and lack of treatment in regard to his alleged injuries arising from the subject accident, which it says is significant as it confirms the claimant’s injuries were only minor in nature as immediate or ongoing treatment was not sought.
The insurer notes that on a number of occasions, the claimant’s lumbar spine condition was diagnosed as degenerative change with the absence of fracture, compression or displacement.
The insurer also submits that the treating medical records also highlight the claimant’s first complaint of buttock pain was over two years post-accident and appears to be following a Thai massage. Therefore, the insurer submits that the claimant’s buttock pain is not causally related to the subject accident.
The insurer noted that both Associate Professor Kleinman and Dr Millons concluded that the claimant’s right hip and buttock pain were not casually related to the subject accident. Further, the insurer noted that Dr Millons diagnosed the claimant with an aggravation of a pre-existing desiccation in the lumbar region. The insurer said that in any event, Dr Yu concluded that any injury sustained by the claimant in the subject accident had fully resolved.
In respect to the claimant’s claim of having sustained psychological injury as a result of the subject accident, the insurer noted that Dr Newlyn said that the claimant had a substance use disorder prior to the subject accident and therefore concluded that the claimant’s psychological injury was not causally related to the subject accident.
Additionally, the insurer submits that Dr Bench diagnosed the claimant with a variety of psychiatric conditions, but the insurer says that he did not explicitly relate them to the subject accident.
Medical evidence
The insurer, within its submissions, provided a summary of some of the medical evidence.
An ambulance attended the accident scene however, it seems that this was not primarily for the treatment of the claimant. The report records treatment provided only to the driver of the vehicle first hit by the insured’s vehicle which then rear ended the claimant’s vehicle. There is no record of any treatment administered to the claimant.
The claimant first attended his treating GP, Dr George on 24 July 2015. This was six weeks post-accident. Dr George reported that the claimant’s history was that he was checked by ambulance officers but that after the accident he had pain in the back for about two minutes. At the time of this consultation, the claimant had back ache which came and went. The insurer has submitted that the claimant may have been seeking treatment for a chest infection and after the consultation he referred to his back ache and was referred to a scan of the lumbar spine. Dr George certified the claimant unfit for work from 2 October 2015 to 11 November 2015 and noted he was on sickness benefits for anxiety but clarified that the claimant was not certified unfit for reasons of his back injury.
Dr George noted the claimant suffered from anxiety pre-accident, depression, was a smoker, consumed excessive alcohol and had arthralgia of the left knee.
The Medicare and Pharmaceutical Benefits Scheme records as at 5 September 2018 reveal there was no appointment from the date of accident, 10 June 2015, until the appointment with Dr George on the 24 July 2015.
On 29 October 2015 the claimant underwent a CT scan of the lumbar spine which showed a non-neural compressive disc at L4/5, central left paracentral disc at L5/S1 in close proximity to the left S1 nerve root but with no displacement. No significant facet joint degenerative change was seen, and no unstable fracture was visualised.
On 30 November 2015 an MRI of the lumbar spine reported disc degenerative changes maximal at L4/5, L5/S1 without neurological compression.
On 8 March 2016 the claimant saw Dr Kuru, orthopaedic surgeon on referral from
Dr George for treatment of non-specific back pain. Dr Kuru took a history from the claimant that in the subject accident he had pain for a few minutes which then settled. The pain returned four days later but then settled again. Dr Kuru reported that over winter when the claimant was lying on a lounge, he noted episodes of back pain on and off which progressively became more consistent. Pain was said to be in the mid lumbar spine. Dr Kuru diagnosed the claimant with non-specific back pain. Dr Kuru reassured the claimant his spine was stable.Newcastle After Hours Surgery, general practice, clinical notes as at
4 September 2018 revealed that the claimant first attended for back pain on
5 May 2016, almost one year post-accident. He reported local back pain with no neurological symptoms, analgesia and back exercises were recommended. The claimant was then first referred to Dr Pankaj Rao for treatment of the back pain complained of in 2017. Dr Rao noted the claimant complained of buttock pain following a Thai massage a few weeks prior.Dr James O’Sullivan, orthopaedic surgeon, clinical notes as at 13 September 2018 reveal he reviewed the claimant post-accident on 18 October 2016 for a fractured right ankle from a motorbike accident. Dr O’Sullivan noted the claimant had abrasions down the lateral aspect of his right leg, right thigh and buttock. The abrasions were so extensive that the doctor was not able perform the required internal fixation on the broken ankle until 10 November 2016.
On 24 July 2017, just over two years post-accident, an ultrasound of the right buttock noted no abnormalities.
On 17 August 2017 an ultrasound of the hip/right groin showed no evidence of hip abnormality or trochanteric bursitis.
On 7 September 2017 the claimant underwent an MRI of the right buttock. This showed normal hamstrings on the right with no evidence of tear and an osteochondral lesion in the right femoral head and noted the claimant also had an osteochondral lesion in the left knee imaged in 2012 and 2014.
On 12 October 2017, an MRI of the lumbar spine showed a right paracentral disc protrusion at L5/S1 with the protrusion extending to the lateral recess effacing the right S1 nerve root which was described as not present on the previous study. There was also noted to be a broad-based annual disc bulge at L4/5 without significant neural compromise.
On 15 October 2017, Dr Rao of Lingard Private Medical Centre, reported to
Dr Sophara Roath that the claimant had buttock pain following a Thai massage some weeks earlier.On 5 April 2018, nearly three years post-accident, the claimant underwent a right L5/S1 microdiscectomy and right S1 rhizolysis at Sydney Adventist Hospital.
Dr Christopher Dunkley, orthopaedic surgeon, clinical notes as at 10 September 2018 show that the claimant reported that the pain in the right buttock commenced after he had a Thai massage. Dr Dunkley was unable to provide a diagnosis or reason why the claimant was still experiencing symptoms and referred the claimant to Dr Kuru for review.
On 21 October 2019, an MRI of the lumbosacral spine revealed a posterior disc bulge at L5/S1 with a left paracentral component effacing and compressing the existing left S1 nerve root in the sub-articular space. It was noted that the previously demonstrated right paracentral disc protrusion demonstrated significant improvement from the previous study presumably related to previous surgery/microdiscectomy.
Further clinical records of Dr George, show that the claimant had a constant pre- accident medical history but not relating to complaints regarding the lumbar spine, and showing that post-accident the claimant has continued to complain of unrelated issues.
Claimant’s medical evidence
Associate Professor Leon Kleinman, orthopaedic surgeon reported on
22 November 2017. He diagnosed the claimant with a soft tissue injury to his lower back in the subject accident but indicated that the claimant did not appear to have sustained an injury to his right hip or buttock in the accident. He suggested it was possible the claimant injured his right hip in a motorcycle accident in 2016. He considered that the claimant’s problems appeared to be arising from his right hip area.On 13 February 2019, Dr Christopher Bench, psychiatrist diagnosed the claimant with a number of psychiatric conditions. Dr Bench considered that the claimant’s reported mental health would impact his capacity to work, however, he also noted that the claimant was not working for 4 – 5 years prior to the accident.
A Supplementary Report of Dr Bench, dated 16 October 2019, noted that he had previously examined the claimant on 3 September 2010 and 12 February 2019. In respect to these earlier examinations, Dr Bench noted the claimant’s history provided during the February 2019 examination was inconsistent with much of the history provided in 2010, pre-accident. Dr Bench reported that the claimant presented as an unreliable historian with innumerable inconsistencies that Dr Bench reportedly had difficulty resolving.
Dr Ghabrial in his report of 1 November 2017 said that examination of the right hip showed irritable movements of that joint. He said that clinical assessment and investigations confirmed L5/S1 disc herniation with evidence of right leg radiculopathy. He said that the right hip had evidence of an osteochondral lesion with early osteoarthritic changes.
Dr Ghabrial said that he could not exclude the high possibility of future surgical intervention for the claimant’s lower back in the form of a right L5/S1 discectomy and later on to the right hip in the form of a right total hip replacement.
Dr Ghabrial assessed WPI of the lumbar spine at 10% with a DRE category III and WPI for the right hip at 8% giving a combined value of 17% WPI.
Dr Kleinman provided a report of 23 November 2017. He noted that about a year earlier, the claimant was riding a motorcycle when he “stacked it”. He was wearing a crash helmet but he could not really remember the accident. The claimant said that he was not going very fast at the time but be lost control of his motorcycle and it veered off the road. He had fractured his right ankle and was on crutches for five months.
Dr Kleinman reported that about two years following the motor vehicle accident, the claimant developed severe pain in his right hip after he had had a massage for the pain in his low back. He indicated the pain as being in his right buttock in the region of the greater trochanter.
Dr Kleinman did not believe that any injury to the claimant’s right hip occurred as a result of the accident on 10 June 2015. He said that the pain in the claimant’s right buttock commenced almost two years following that accident.
Dr Kleinman said that the claimant appeared to have sustained a soft tissue injury to his low back in the accident. His diagnosis was complicated by the further motorcycle accident in which he was involved in the onset of pain in his right back following massage for the pain in his low back.
Dr Dunkley provided a report of 23 November 2017. He said that the claimant had a quite a long, complex history of injuries to his ankle and back, but his most recent problem was quite severe and disabling pain in the right buttock. Dr Dunkley said that the symptoms began approximately four and a half months before the examination and it was reported that the claimant felt that this pain began several days after he had a massage. The claimant said that he believed that there was significant bruising in the area and since then had deep seated buttock pain, which was worse on sitting and sometimes radiated down the posterior aspect of his leg.
Medical Assessor Machart provided a certificate going to reasonable and necessary treatment. He recorded that there was no evidence of back pain or injury to the back prior to the subject accident. He noted that the claimant did not seek medical attention for several weeks after the accident. The claimant’s GP, Dr George, organised imaging two months after the accident. There was progression of the back symptoms subsequently over three years to right sided sciatica, diagnosed as L5/S1 disc protrusion on the right, not evident on the initial MRI.
The Medical Assessor discussed a repair quote of 3 April 2020 for the claimant’s car which was for $10,489. The claimant said that his car was a write off. The Medical Assessor said that he considered the repair quote consistent with causing trauma to the occupant, being the claimant.
Medical Assessor Machart concluded that the injury to the claimant’s lumbar spine disc was not static, and was consistent with change of symptoms and advancement in the pathology over time, initial disruption of disc capsule, which over time caused a disc protrusion. He said that he did not have before him evidence that the change in the disc morphology was due to any other event. The Medical Assessor was of the opinion that the pathology for which the L5/S1 microdiscectomy was conducted was as a result of the subject accident. He said that the disc protrusion caused pressure on the nerve root, progression of pathology from the subject accident to the extent where surgery to relieve the pressure on the nerve root, microdiscectomy, was the appropriate treatment, and was reasonable and necessary in the circumstances.
Dr Sears has not considered the issue of attributability of the claimant’s condition to the accident. He has provided ongoing treatment reports and a surgery report.
The claimant came under the care of Dr Hayes, pain medicine physician. There are a number of letters/reports from him to the claimant’s GP. The discectomy by Dr Sears was noted as having brought relief. Subsequently, the claimant had chronic left sided abdominal/loin pain but no clear cause of his pain was identified.
Insurer’s medical evidence
On 19 September 2018, Dr David Millons, orthopaedic surgeon, diagnosed the claimant with an aggravation of a pre-existing desiccation in the lower lumbar region giving rise to some low back symptoms. However, he considered that the right hip and buttock pain did not relate to the accident in 2015. Dr Millons assessed WPI at 5% for the lumbar spine only. The hip and ankle were not included in this assessment.
Dr Peter Yu, occupational physician, reported on 18 April 2019. Dr Yu’s diagnosis was that any bodily injury sustained by the claimant as part of the accident would have been superficial, self- limited and only of a soft tissue nature, and that any injury sustained in the accident fully resolved without the need for any treatment before he left the accident scene.
Dr Thomas Newlyn, psychiatrist, provided a report on 6 January 2020. Dr Newlyn reported that the history obtained from the claimant was unreliable. He described the claimant as being avoidant and claiming not to remember as well as reportedly denying problem behaviours documented in the medical records.
Dr Newlyn concluded that the claimant had a substance use disorder history preceding the 2015 subject accident and following the 2015 accident. He reported that the claimant’s psychological and psychiatric symptoms were caused by his substance use disorder. Dr Newlyn reported that the claimant’s current psychiatric symptoms were not causally related to the accident. Dr Newlyn said that the claimant did not have a psychiatric injury as a result of the accident.
The Medical Assessor provided his certificate and reasons dated 11 June 2021. He found that the claimant’s soft tissue injury to his lumbar spine and soft tissue injury to his right hip had resolved and did not result in a permanent impairment.
The Medical Assessor noted that the claimant, following the accident said that he complained of left leg pain, and left sided loin pain although he did not mention this to his GP for approximately nine months even though the claimant said that he could not get back to work as a labourer because of his ongoing symptoms.
The Medical Assessor said that the claimant had been extensively treated and investigated for injuries he claimed were related to a minor rear-end accident on
10 June 2015. He said that there was no explanation as to why he delayed seeking treatment for nine months after the accident.The Medical Assessor said that the claimant may well have developed sciatica which he had associated to a minor car accident in June 2015 however, this is not consistent with a pathological process.
The Medical Assessor did not agree with the conclusion of Dr Sears saying that he did not believe that there was a pathological process for his symptoms which could be attributed to the accident in June 2015.
The Medical Assessor commented that he could not find any mention of sciatica in the early acute phase of his injury. He reported that his sciatica came on without intervening injury nine months later, that is, he reported hip pain which was later diagnosed as a sciatica.
The Medical Assessor also commented on the Personal Injury Claim Form where the claimant submitted that he had injuries to his lower back and left side. There was no mention of his right hip or sciatica.
The Medical Assessor said that if the claimant had suffered a soft tissue injury of the lumbar spine, then ample time had passed for this to resolve. He did not believe the development of possible sciatica nine months later was associated to the subject motor vehicle accident.
The Medical Assessor said that the documentation also included evidence to suggest that the claimant reported a variety of complaints that prevented him from working prior to the subject accident.
The Medical Assessor noted the MRI report dated 30 November 2015 which showed degenerative changes at L4/5 and L5/S1. He could not identify any significant pathology that would be consistent with his symptoms causally related to the subject accident.
The Medical Assessor did not believe that there was a causal link between the diagnosis/treatment and the previous “minor motor vehicle accident”.
Medical examination
The claimant was examined by way of a teleconference with the Medical Assessors on 15 March 2024. Their report follows:
“Medical Assessment of Joshua Wood – Assessors Chris Oates and Sophia Lahz 15/3/24 – 60 minutes duration (via video link)
Mr Wood aged 42 attended punctually for the video link meeting. He required assistance to set up the connection, specifically turning on the camera.
The medical assessors found Mr Wood a man of few words, who sometimes needed pressing to provide sufficient information. Due to paucity of information provided, the medical assessors went through the contents of medical records in date order, whilst obtaining his feedback about symptom trajectory and treatments received since the motor accident.
Pre-Accident History
By way of medical history, the medical assessors confirmed with Mr Wood that there was no history of low back pain preceding the subject motor accident. At age 6, he was involved in an MBA, later undergoing splenectomy. In 2013, he confirmed that he underwent successful left knee surgery. Also in 2013, he underwent a successful surgical repair of an umbilical hernia.
Mr Wood lives with his father and had been working casually, concreting and fencing at the time of the 2015 motor accident. He told the Panel examiners that he has not worked since the motor accident due to low back pain. However, the medical assessors pointed out to him that this information is at odds with the content of Dr George’s correspondence dated 24 July 2015 stating that he had been receiving sickness benefits for an anxiety disorder. Mr Wood disputed the content of the latter report. He also said that he has been receiving Newstart since the motor accident, only obtaining medical certificates whenever he is ‘hassled’.
Subject accident and progress
Mr Wood confirmed his involvement in the subject accident on 10 June 2015. At the time, he was the restrained driver of a Ute when rear-ended in a shopping centre. There was no frontal impact and no airbags deployed.
Mr Wood recalled abrasions to the left side of the trunk after the motor accident. He reported being able to exit the vehicle unaided. The ambulance attended and there was a brief discussion/check over. He did not attend the hospital. He said that he experienced a sore back at the scene for approximately two minutes before symptoms spontaneously resolved.
Three weeks later, there was recurrent non-radiating low back pain for which he said he saw his GP Dr George. Records indicate actually that he saw Dr George six weeks after the motor accident on 24 July 2015 for upper respiratory tract symptoms although during this consultation a CT scan of the lumbar spine was arranged for symptoms not detailed in the notes. On specific enquiry, he said that he had not consulted any other doctors or allied health practitioners beforehand regarding lower back symptoms.
Mr Wood underwent the CT lumbar spine 29 October 2015, three months later, which demonstrated left paracentral bulging at L5-S1 versus the S1 root. He did not recall any particular reasons for the delay in having the CT scan. Subsequently, there was an MRI scan of the lumbar spine on 30 November 2015 showing L5-S1 bulge without neural compression.
After the accident, Mr Wood continued experiencing intermittent low back pain with referral to the left lateral trunk (without sciatica). He did say that symptoms spread down the right leg after the motor accident although he later acknowledged that the right leg symptoms did not occur until approximately 2017 more than two years after the motor accident. The medical assessors noted the pain diagram within the personal injury claim form completed in February 2016, with shading of the midline lower back and left paravertebral region. There was no shading to the right of lumbar spine nor was there shading of the right leg. This issue was brought to Mr Wood’s attention who agreed that the onset of right sciatica occurred several years after the motor accident around 2017.
When asked about treatment for the lower back injury after the motor accident, Mr Wood said that he was unable to remember. However, with prompting, he volunteered that he had tried several interventions including acupuncture and Bowen therapy. He also used Voltaren for symptomatic relief, which he found preferable to other kinds of anti-inflammatory medication.
In July 2016, the medical assessors noted that Mr Wood saw another GP (Dr Barnett) with complaint of low back pain radiating to the lower abdomen.
As noted above, he stated that he remained off work due to back pain.
Subsequent incidents and progress
Mr Wood agreed that he had been involved in a motorbike accident on 12/10/16 in which he incurred a right ankle fracture. He said that a mate suggested that if he went motorbike riding, this might “cure” the lower back symptoms. The medical records indicate that as a result of this (motorbike) accident, there were abrasions of the right thigh and buttock. Mr Wood consulted Dr O’Sullivan, a foot surgeon on 18/10/16. The ankle was initially splinted although he later came to open reduction and internal fixation on 8/11/16.
On specific enquiry, Mr Wood said that the lower back symptoms were the “same” after the abovementioned 2016 motorbike accident. However, in July 2017, he returned to consult Dr George, GP regarding right-sided lower back/buttock symptoms. He had also recently received a Thai massage during which session, the therapist reportedly placed their knee firmly into his right buttock. Within the two days of the massage session, Mr Wood was experiencing very severe right buttock pain for which the doctor prescribed Panadeine Forte, Tramadol and Valium. Mr Wood was unable to provide much information regarding the abovementioned events although he agreed when the latter information contained in the records was put to him.
Dr George arranged various scans to investigate his complaints of severe right buttock and lower limb pain including right buttock ultrasound (normal), right hip ultrasound (normal) and MRI of the right buttock 7 September 2017 (normal buttock musculature, although there was an incidental finding of an osteochondral lesion in the femoral head) thought unrelated to the symptoms.
Mr Wood was referred to Dr O’Sullivan a hip specialist to ensure that the identified lesion in the right femoral head was not contributing to the disabling buttock pain. Dr O’Sullivan suspected pain of muscular origin and referred Mr Wood to a sports physician.
An MRI scan of the lumbar spine was undertaken on 9 October 2017 showing right paracentral L5-S1 disc lesion compressing the S1 nerve root.
Mr Wood saw various other orthopaedic specialists including Dr Dunkley, Dr Kuru and later Dr Cairns who concluded the right lower limb pain was from the lumbar spine.
Mr Wood received several interventions to quell right lower limb/buttock pain, including CT lumbar epidural 12 October 2017, CT guided sacral injection 10 November 2017, right transforaminal S1 block 30 October 2017 and right hip steroid injection, none of which unfortunately provided any relief.
Due to failure of conservative measures, Mr Wood was then referred to Dr William Sears, a neurosurgeon whom he saw on 12 March 2018. Dr Sears’ correspondence refers to an ‘eight month history’ of right buttock pain. Progress MRI 12 March 2018 scan reconfirmed the right-sided L5S1 disc lesion compressing the S1 nerve root. Mr Wood came to right L5S1 microdiscectomy on 5 April 2018, which he said, that he and his mother self-funded.
Post-operatively, Mr Wood said that the right lower limb/buttock pain was very much improved. There was no longer any stabbing pain in this location. He received further treatment interventions including physiotherapy and Bowen therapy. He is no longer in follow up with Dr Sears, and not presently receiving any specific treatment. On specific enquiry, he could not remember when he last received any treatment.
In August 2018, Mr Wood injured the left shoulder at the gym whilst doing bench presses. He required a left shoulder subacromial decompression on 15 August 2018.
On 21 October 2019, an MRI scan of the lumbar spine showed left-sided L5S1 bulge with compression of S1 root.
Current situation
Ongoing, he complains of mechanical low back pain with occasional radiation to the left buttock (every few months). He also still experiences intermittent right buttock pain radiating down the posterior lower limb, stopping at the knee. Lying down generally provides symptomatic relief. There are no lower limb paraesthesia. Back pain is generally more prominent than lower limb pain.
On specific enquiry, Mr Wood said he does no chores because he is “unwell” from back and left truncal pain with the abovementioned episodic radiation of back pain to the right buttock/posterior thigh and left buttock.
He reported that he spends much of the day lying down and no longer attends the gym due to back pain. He reported to have no friends and no particular hobbies or recreations.
His current medications are Buprenorphine tablets twice daily (regularly), Paracetamol and Mirtazapine.Conclusion
The Panel found the claimant did sustain a soft tissue injury of the lumbar spine in the subject 2015 motor accident. After the accident, he suffered intermittently from non-radiating left-sided lower back pain.
The claimant’s lumbar spine soft tissue injury did not resolve after the subject accident and prior to the motorbike accident and Thai massage incident but had evolved into a chronic pain situation. This was contributed to by anxiety over his mother's cancer battle and a breakdown of interpersonal relationship with his father. He was taking Panadeine forte and Lyrica but was asking the GP for opioids and when refused was obtaining same, informally, from his mother and others.
The Panel agrees the soft tissue injury from the motor vehicle accident has not resolved but this was not associated with any radicular symptoms to either lower extremity at any time, giving him DRE1- 0% WPI.
The subsequent motorbike accident, from its description of his being thrown from the bike, involved a much greater mechanical force than the index accident – (a minor rear end motor vehicle accident which occurred at low speed and causing only momentary low back pain, and not requiring any immediate medical attention) – and evidently caused significant injury to the right side of the lower body involving the buttock, thigh, and ankle. He attended the GP on the same day, who referred him to the emergency department to check for a suspected ankle fracture. This was in fact the case and there was a displaced medial malleolus fracture which required open reduction and internal fixation.
After this motorbike accident, there was ongoing low back pain to the right buttock and the GP record at 21 /7/2017 recorded an acute increase in low back and right buttock pain after a Thai massage two days prior at which a masseur’s knee had been pushed down into the right gluteal area, which was the site of pain since the motorbike accident, but had not been symptomatic at any time after the index motor vehicle accident.
Extensive investigations thereafter ruled out a gluteal injury. But eventually there was an MRI scan of lumbar spine on 9/10/2017 showing a new finding of a right paracentral L5/S1 disc protrusion effacing (effacing in radiology means that a space or cavity has been obliterated by the external application of mass effect – in this case the space around the nerve root obliterated by the disc pressing against it) the right S1 nerve root, which finding was not present on the previous MRI lumbar scan. And this new finding is concordant with the new symptoms of right buttock pain radiating to the right leg which only had their onset after the Thai massage.
The right leg sciatica eventually led to a discectomy after failed periradicular steroid injections.
Medical Assessor Harrington certificate
The clinical examination findings by Medical Assessor Harrington were consistent with DRE1 giving 0% WPI with no guarding, no dysmetria and no radiculopathy. It is questionable whether there were non verifiable radicular complaints (NVRC’s). Medical Assessor Harrington noted the claimant disclosed no intervening injuries following the subject motor vehicle accident and that he was a difficult historian.
There were no NVRC’s consistent with a right sided S1 nerve distribution in the leg reported to the Panel Medical Assessors either.
Medical Assessor Machart certificate
Medical Assessor Machart’s decision on causation was based on an incomplete history which excluded the interval motorbike accident and the episode with the Thai massage which resulted in the onset of right-sided radicular symptoms affecting the lower extremity for the first time, noting that Dr. Machart had recorded under ‘details of subsequent injury’ – nil. Medical Assessor Machart had also stated that the claimant was a poor historian .
Thus, it is evident that neither Medical Assessor had access to the GP and specialist records referring to the subsequent motorbike accident and Thai massage injury, and the claimant did not disclose these accidents to Medical Assessor Harrington nor in appropriate detail to Medical Assessor Machart, allowing him to make a fully informed decision on causation in respect of the need for discectomy surgery.The initial post-accident CT scan of the lumbar spine (October 2015) showed a left-sided L5-S1 disc bulge whereas the subsequent November 2015 MRI showed L5S1 disc bulging without right-sided preponderance.
The first reference to right buttock/leg pain does not occur until after the 2016 motorbike accident causing direct injury to the right leg, inclusive of abrasions to the right buttock.
Right buttock/lower limb symptoms later intensified following a massage session in mid 2017 causing Mr Wood to consult Dr George (GP) who arranged a series of right hip and right buttock x-rays, ultrasound scans and MRI scans for further evaluation of symptoms.
In October 2017, an MRI scan confirmed a paracentral disc protrusion at L5S1 causing compression of the right S1 nerve root.
Specialist correspondence at the time such as that of Dr Sears (neurosurgeon) dated 12 March 2018 refers to an eight month history of right buttock/leg pain (i.e. onset of intense symptoms from mid 2017) approximately two years after the motor accident.
The latter mentioned right-sided L5/S1 disc lesion causing S1 compression was not present on lumbar spine scans performed during 2015 shortly after the subject motor accident.
The right-sided disc protrusion was not present early on after the accident, only developing in association with the right buttock pain/sciatica two years later (around the time of the MBA and Thai massage). A disc protrusion toward the right side with symptoms more than two years after an accident, cannot reasonably be related to the accident.
Whilst not within the remit of the review before this Panel, the Panel has determined that a right-sided disc L5-S1 lesion developing two years after the subject motor accident is not causally related, and therefore the subsequent surgery L5/S1 microdiscectomy would not have been reasonable and necessary due to the subject motor accident.”
CAUSATION
The Motor Accident Permanent Impairment Guidelines
The Motor Accident Permanent Impairment Guidelines (the Guidelines) identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment. Concerning that issue, the Panel must determine causation by the application of legal notion of causation.
The authorities
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[4] and
"scope of liability".[5]
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.
In the accident involving the claimant, his car was collided into from behind. It was sudden, and possibly with some degree of force. The claimant was first in a line of three cars in the accident, caused by the third in line, insured car.
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
[8] At [27].
In Briggs v IAG Limited t/as NRMA Insurance[9] Harrison AsJ considered an application for judicial review of medical certificate issued by a Review Panel involving the application of s 1.6 of the Act. The Review Panel in Briggs was constituted by three Medical Assessors before the changes brought in by the Personal Injury Commission Act 2020 where a legal Member now constitutes one of the Panel.
[9] [2020] NSWSC 1318.
The Review Panel’s certificate in Briggs’ case was set aside because of the lack of procedural fairness in basing their decision on an article about which the Review Panel had not given the parties the opportunity to make submissions. However, in particular AsJ Harrison found at [59], “[t]he terms ‘violent’ and ‘less than violent’, pulled from the article, introduce defined standards of severity which do not appear in the statue or relevant guidelines.”
In this claim, there is no issue about reliance on an article. However there has been some reliance by the insurer on photographs of the claimant’s car and the middle car in the line of three, as well as a repair quote for the insured car. The Panel are not qualified traffic engineers and make no determination about the damage shown to each of the cars and the repair quote for the claimant’s car, which he said was written off, presumably for insurance purposes.
Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error: see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43”.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804, the correct principles to apply relating to causation were discussed and as set out below:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a ‘left posterolateral annular tear’ with ‘mild disc desiccation’ shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstrate that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”The claimant was involved in a rear end collision in a car which was third in a line of three cars. He was the driver of a utility car. It is understood by the Panel that the car in which the claimant was driving was written off for insurance purposes.
The Panel must consider, where, as with the case of the claimant’s low back and hip injury, whether the disability is causally related when there was little or no complaint about this area of disability for nine months post-accident and there is controversy regarding the relationship between hip injury and sciatica pain.
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission. Those injuries referred to the Panel were a soft tissue injury to the right hip and a soft tissue injury to the lumbar spine only.
The Panel must also ask whether on the balance of probabilities the accident occurring on 10 June 2015 caused a soft tissue injury to the claimant’s right hip and lumbar spine, and if so, what percentage impairment can be attributed to this.
The claimant, following the accident on 10 June 2015, first saw his treating doctor,
Dr George, on 24 July 2015, apparently for an upper respiratory tract infection. It would seem though that he mentioned something to do with his lumbar spine as he subsequently had a number of scans.Thereafter, it was not until 12 November 2015 when the claimant must have made a complaint about his back and had an MRI scan of his lumbar. The result of this was discussed in surgery on 11 December 2015.
On 1 February 2016, the claimant was reported in the clinical notes as saying, “the back got worse only now”.
The claimant also saw another GP, Dr Barrett, on 1 July 2016. He said he had pain in June 2015 after a car accident, but this settled in a few minutes. He said that about a week later he had severe backache and had a sore back since then, but it fluctuates. This was described by Dr Barrett in his clinical notes on 4 July 2016 is a new diagnosis – lumbar back pain.
The claimant over a 12-month period following the accident has made very few complaints about his lumbar spine and right hip.
After the accident, the Medical Assessors have noted that the initial post-accident CT scan of the lumbar spine in October 2015, showed a left-sided L5-S1 disc bulge whereas the subsequent November 2015 MRI showed L5/S1 disc bulging without right-sided preponderance.
The first reference to right buttock/leg pain did not occur until after the claimant suffered a motor bike accident in 2016 in which he had direct injury to his right leg, inclusive of abrasions to his right buttock.
The claimant’s right buttock/lower limb symptoms later intensified after a massage session in mid-2017. The result of this was to cause the claimant to consult Dr George, his GP, who arranged a series of right hip and right buttock X-rays, ultrasound scans and MRI scans for further evaluation of symptoms.
In October 2017, an MRI scan confirmed a paracentral disc protrusion at L5S1 causing compression of the right S1 nerve root.
Associate Professor Kleinman, reported on 22 November 2017, when he diagnosed the claimant with a soft tissue injury to his lower back in the subject accident but indicated that the claimant did not appear to have sustained an injury to his right hip or buttock in the accident. He suggested it was possible the claimant injured his right hip in a motorcycle accident in 2016. He considered that the claimant’s problems appeared to be arising from his right hip area.
Associate Professor Kleinman reported that about two years following the motor vehicle accident, the claimant developed severe pain in his right hip after he had had a massage for the pain in his low back.
As the Medical Assessors commented in their examination findings, treating specialist correspondence at the time such as that of Dr Sears refers to an eight-month history of right buttock/leg pain which is indicative of onset of intense symptoms from mid-2017, approximately two years after the motor accident.
Whilst the lack of complaint by the claimant of lumbar spine and right hip pain is not determinative that there was no injury to those areas, the Panel is satisfied that the claimant did have limited treatment as a result of the accident. If he had a notable back pain, he would have sought treatment. Instead, he was able to ride a motorbike and in the course of that activity, suffered physical injuries including a fractured ankle and considerable abrasions to his right hip and side which initially prevented surgical treatment for his physical injuries.
The Panel is satisfied that the right hip disability is not related to the subject accident. It is not referred to on the claim form, the claimant stated he had low back pain radiating to left side, and this is consistent with contemporaneous medical evidence including CT scan showing a left paracentral L5/S1 disc displacement. The first mention of right sided symptoms does not occur until after the subsequent motorcycle accident. The accident the subject of this claim did not materially contribute to the development of sciatica.
The Panel is satisfied that the latter mentioned right-sided L5/S1 disc lesion causing S1 compression was not present on lumbar spine scans performed during 2015, shortly after the subject motor accident.
For the reasons discussed, the Panel has determined that on the balance of probabilities, a right-sided disc L5-S1 lesion developing two years after the subject motor accident is not causally related to the accident. Following on from this, the subsequent surgery L5/S1 microdiscectomy was not reasonable and necessary due to the subject motor accident although it might have been reasonable and necessary because of subsequent events.
The Panel concludes that the subject motor vehicle accident resulted in a persisting soft tissue injury of the lumbar spine resulting in DRE category I with 0% WPI and that the right S1 nerve root compression secondary to disc prolapse was not caused by the subject accident but had developed subsequently following an over vigorous Thai massage when the knee was inserted into the right gluteal area which had been the site of persisting pain since a motorcycle accident, which had probably resulted in an incipient right-sided disc injury, and which was extended following the massage to produce actual pressure on the right S1 nerve root manifesting as sciatica and necessitating discectomy.
The Panel revokes Medical Assessor Harrington’s certificate. It agrees that the subject accident resulted in a lumbar spine soft tissue injury, associated only with left sided local mechanical symptoms but no radiation to the left lower extremity. The Panel does not find a right hip soft tissue injury was related to the accident for reasons outlined elsewhere in the certificate – pictogram shaded central and left sided lumbar area, no reference to right hip in contemporaneous medical evidence prior to the subsequent motorbike accident , which in effect broke the chain of causation from the index motor vehicle accident and caused the onset of new symptoms affecting the right side of lumbar spine/ gluteal region. The Panel agrees that Medical Assessor Harrington’s clinical examination findings are consistent with DRE Lumbosacral category I giving 0% WPI, and the finding of full range of movement at the right hip does not give rise to any permanent impairment.
The Panel is not satisfied that the accident and impact has had a more than negligible effect on the injuries suffered by him.
Claimant’s assertion that the Panel is bound by the certificate of Medical Assessor Machart
The Panel does not accept the claimant’s contention that it is bound by the earlier decision of Medical Assessor Machart. It is not the opinion of the Panel that there is an estoppel created by this decision. The Panel has taken into account the reasons of Medical Assessor Machart and has considered these as part of the overall medical evidence. The Panel, in any event, has had to consider different issues to that of Medical Assessor Machart.
Medical Assessor Machart said that the injury to the lumbar spine disc was not static and was consistent with change of symptoms and advancement in the pathology over time, initial disruption of disc capsule, which over time caused a disc protrusion. He said that he did not have before him evidence that the change in the disc morphology was due to any other event. Medical Assessor Machart was of the opinion that the pathology for which the L5/S1 microdiscectomy was conducted was as a result of the accident. At the time Medical Assessor Machart assessed the claimant, he was aware of the motor bike accident but did not consider if this affected the claimant’s lumbar spine and hip condition independently of the subject accident.
Medical Assessor Machart also did not know of or did not consider the impact of the Thai massage.
The Medical Assessor said that the disc protrusion caused pressure on the nerve root, progression of pathology from the subject accident to the extent where surgery to relieve the pressure on the nerve root, microdiscectomy, was the appropriate treatment, and which in his opinion, was reasonable and necessary in the circumstances.
For the reasons previously given, the Panel does not agree with the findings of Medical Assessor Machart.
The Panel relies on the decision of Adamson J in Lithgow, supra, and is of the opinion that it is not bound by the earlier certificate and reasons of Medical Assessor Machart. The Panel has made its own independent assessment based on all the material before it and including its discussions with the claimant on 15 March 2024.
CONCLUSION
As a result of the accident on 10 June 2015, the claimant has suffered soft tissue injuries to his lumbar spine.
The claimant developed a right-sided disc L5/S1 lesion two years after that accident however this was not as a result of the accident, noting the claimant had a motor bike accident in 2016 with a direct injury to his right leg and abrasions to his right buttock. The claimant also had a notable event around 2017 when having a Thai massage with the therapist placing their knee firmly into his right buttock. This caused the claimant to seek medical assistance two days later, complaining of severe right buttock pain.
Medical Assessor Harrington found that the injuries to the claimant’s back and right hip had resolved. He assessed WPI at 0%. The Panel has also found that the lumbar spine soft tissue injury claimed by the claimant as arising out of the accident has resolved. There is no current impairment to assess.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Harrington for the reasons given.
The Panel adopts the clinical examination findings of Medical Assessor Harrington which are consistent with DRE lumbosacral I – 0% WPI, and 0% WPI arising from the right hip.
Clause 6.6 provides:
“Causation means that a physical, chemical or biologic 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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 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. 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.”
- AGLC
- Wood v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 321
- Case
- [2024] NSWPICMP 321
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Panel was bound by the previous assessment by Medical Assessor Machart and if the right-sided sciatica developing two years post-accident was related to the accident. Additionally, the court needed to decide if the subsequent surgery by way of an L5/S1 microdiscectomy was reasonable and necessary due to the accident or intervening events.
The court found that the Panel was not bound by the decision of Medical Assessor Machart as it was based on an incomplete history that did not include the subsequent motorbike accident and the Thai massage incident, both of which caused significant injury to the right side of the claimant’s lower body. The court held that the right-sided L5/S1 lesion developing two years post-accident was not related to the accident. The claimant had a DRE 1 category soft tissue injury to his lumbar spine but had 0% WPI. The court concluded that the surgery by way of an L5/S1 microdiscectomy was not reasonable and necessary due to the accident but might have been reasonable and necessary due to intervening events. The certificate and reasons of Medical Assessor Harrington were revoked.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The claimant was examined by way of a teleconference with the Medical Assessors on 15 March 2024. Their report follows:“Medical Assessment of Joshua Wood – Assessors Chris Oates and Sophia Lahz 15/3/24 – 60 minutes duration (via video link)Mr Wood aged 42 attended punctually for the video link meeting. He required assistance to set up the connection, specifically turning on the camera. The medical assessors found Mr Wood a man of few words, who sometimes needed pressing to provide sufficient information. Due to paucity of information provided, the medical assessors went through the contents of medical records in date order, whilst obtaining his feedback about symptom trajectory and treatments received since the motor accident.Pre-Accident HistoryBy way of medical history, the medical assessors confirmed with Mr Wood that there was no history of low back pain preceding the subject motor accident. At age 6, he was involved in an MBA, later undergoing splenectomy. In 2013, he confirmed that he underwent successful left knee surgery. Also in 2013, he underwent a successful surgical repair of an umbilical hernia. Mr Wood lives with his father and had been working casually, concreting and fencing at the time of the 2015 motor accident. He told the Panel examiners that he has not worked since the motor accident due to low back pain. However, the medical assessors pointed out to him that this information is at odds with the content of Dr George’s correspondence dated 24 July 2015 stating that he had been receiving sickness benefits for an anxiety disorder. Mr Wood disputed the content of the latter report. He also said that he has been receiving Newstart since the motor accident, only obtaining medical certificates whenever he is ‘hassled’. Subject accident and progressMr Wood confirmed his involvement in the subject accident on 10 June 2015. At the time, he was the restrained driver of a Ute when rear-ended in a shopping centre. There was no frontal impact and no airbags deployed. Mr Wood recalled abrasions to the left side of the trunk after the motor accident. He reported being able to exit the vehicle unaided. The ambulance attended and there was a brief discussion/check over. He did not attend the hospital. He said that he experienced a sore back at the scene for approximately two minutes before symptoms spontaneously resolved. Three weeks later, there was recurrent non-radiating low back pain for which he said he saw his GP Dr George. Records indicate actually that he saw Dr George six weeks after the motor accident on 24 July 2015 for upper respiratory tract symptoms although during this consultation a CT scan of the lumbar spine was arranged for symptoms not detailed in the notes. On specific enquiry, he said that he had not consulted any other doctors or allied health practitioners beforehand regarding lower back symptoms. Mr Wood underwent the CT lumbar spine 29 October 2015, three months later, which demonstrated left paracentral bulging at L5-S1 versus the S1 root. He did not recall any particular reasons for the delay in having the CT scan. Subsequently, there was an MRI scan of the lumbar spine on 30 November 2015 showing L5-S1 bulge without neural compression. After the accident, Mr Wood continued experiencing intermittent low back pain with referral to the left lateral trunk (without sciatica). He did say that symptoms spread down the right leg after the motor accident although he later acknowledged that the right leg symptoms did not occur until approximately 2017 more than two years after the motor accident. The medical assessors noted the pain diagram within the personal injury claim form completed in February 2016, with shading of the midline lower back and left paravertebral region. There was no shading to the right of lumbar spine nor was there shading of the right leg. This issue was brought to Mr Wood’s attention who agreed that the onset of right sciatica occurred several years after the motor accident around 2017. When asked about treatment for the lower back injury after the motor accident, Mr Wood said that he was unable to remember. However, with prompting, he volunteered that he had tried several interventions including acupuncture and Bowen therapy. He also used Voltaren for symptomatic relief, which he found preferable to other kinds of anti-inflammatory medication. In July 2016, the medical assessors noted that Mr Wood saw another GP (Dr Barnett) with complaint of low back pain radiating to the lower abdomen. As noted above, he stated that he remained off work due to back pain. Subsequent incidents and progressMr Wood agreed that he had been involved in a motorbike accident on 12/10/16 in which he incurred a right ankle fracture. He said that a mate suggested that if he went motorbike riding, this might “cure” the lower back symptoms. The medical records indicate that as a result of this (motorbike) accident, there were abrasions of the right thigh and buttock. Mr Wood consulted Dr O’Sullivan, a foot surgeon on 18/10/16. The ankle was initially splinted although he later came to open reduction and internal fixation on 8/11/16. On specific enquiry, Mr Wood said that the lower back symptoms were the “same” after the abovementioned 2016 motorbike accident. However, in July 2017, he returned to consult Dr George, GP regarding right-sided lower back/buttock symptoms. He had also recently received a Thai massage during which session, the therapist reportedly placed their knee firmly into his right buttock. Within the two days of the massage session, Mr Wood was experiencing very severe right buttock pain for which the doctor prescribed Panadeine Forte, Tramadol and Valium. Mr Wood was unable to provide much information regarding the abovementioned events although he agreed when the latter information contained in the records was put to him. Dr George arranged various scans to investigate his complaints of severe right buttock and lower limb pain including right buttock ultrasound (normal), right hip ultrasound (normal) and MRI of the right buttock 7 September 2017 (normal buttock musculature, although there was an incidental finding of an osteochondral lesion in the femoral head) thought unrelated to the symptoms.Mr Wood was referred to Dr O’Sullivan a hip specialist to ensure that the identified lesion in the right femoral head was not contributing to the disabling buttock pain. Dr O’Sullivan suspected pain of muscular origin and referred Mr Wood to a sports physician. An MRI scan of the lumbar spine was undertaken on 9 October 2017 showing right paracentral L5-S1 disc lesion compressing the S1 nerve root. Mr Wood saw various other orthopaedic specialists including Dr Dunkley, Dr Kuru and later Dr Cairns who concluded the right lower limb pain was from the lumbar spine. Mr Wood received several interventions to quell right lower limb/buttock pain, including CT lumbar epidural 12 October 2017, CT guided sacral injection 10 November 2017, right transforaminal S1 block 30 October 2017 and right hip steroid injection, none of which unfortunately provided any relief. Due to failure of conservative measures, Mr Wood was then referred to Dr William Sears, a neurosurgeon whom he saw on 12 March 2018. Dr Sears’ correspondence refers to an ‘eight month history’ of right buttock pain. Progress MRI 12 March 2018 scan reconfirmed the right-sided L5S1 disc lesion compressing the S1 nerve root. Mr Wood came to right L5S1 microdiscectomy on 5 April 2018, which he said, that he and his mother self-funded.Post-operatively, Mr Wood said that the right lower limb/buttock pain was very much improved. There was no longer any stabbing pain in this location. He received further treatment interventions including physiotherapy and Bowen therapy. He is no longer in follow up with Dr Sears, and not presently receiving any specific treatment. On specific enquiry, he could not remember when he last received any treatment. In August 2018, Mr Wood injured the left shoulder at the gym whilst doing bench presses. He required a left shoulder subacromial decompression on 15 August 2018. On 21 October 2019, an MRI scan of the lumbar spine showed left-sided L5S1 bulge with compression of S1 root. Current situationOngoing, he complains of mechanical low back pain with occasional radiation to the left buttock (every few months). He also still experiences intermittent right buttock pain radiating down the posterior lower limb, stopping at the knee. Lying down generally provides symptomatic relief. There are no lower limb paraesthesia. Back pain is generally more prominent than lower limb pain. On specific enquiry, Mr Wood said he does no chores because he is “unwell” from back and left truncal pain with the abovementioned episodic radiation of back pain to the right buttock/posterior thigh and left buttock. He reported that he spends much of the day lying down and no longer attends the gym due to back pain. He reported to have no friends and no particular hobbies or recreations. His current medications are Buprenorphine tablets twice daily (regularly), Paracetamol and Mirtazapine.ConclusionThe Panel found the claimant did sustain a soft tissue injury of the lumbar spine in the subject 2015 motor accident. After the accident, he suffered intermittently from non-radiating left-sided lower back pain. The claimant’s lumbar spine soft tissue injury did not resolve after the subject accident and prior to the motorbike accident and Thai massage incident but had evolved into a chronic pain situation. This was contributed to by anxiety over his mother's cancer battle and a breakdown of interpersonal relationship with his father. He was taking Panadeine forte and Lyrica but was asking the GP for opioids and when refused was obtaining same, informally, from his mother and others.The Panel agrees the soft tissue injury from the motor vehicle accident has not resolved but this was not associated with any radicular symptoms to either lower extremity at any time, giving him DRE1- 0% WPI.The subsequent motorbike accident, from its description of his being thrown from the bike, involved a much greater mechanical force than the index accident – (a minor rear end motor vehicle accident which occurred at low speed and causing only momentary low back pain, and not requiring any immediate medical attention) – and evidently caused significant injury to the right side of the lower body involving the buttock, thigh, and ankle. He attended the GP on the same day, who referred him to the emergency department to check for a suspected ankle fracture. This was in fact the case and there was a displaced medial malleolus fracture which required open reduction and internal fixation. After this motorbike accident, there was ongoing low back pain to the right buttock and the GP record at 21 /7/2017 recorded an acute increase in low back and right buttock pain after a Thai massage two days prior at which a masseur’s knee had been pushed down into the right gluteal area, which was the site of pain since the motorbike accident, but had not been symptomatic at any time after the index motor vehicle accident. Extensive investigations thereafter ruled out a gluteal injury. But eventually there was an MRI scan of lumbar spine on 9/10/2017 showing a new finding of a right paracentral L5/S1 disc protrusion effacing (effacing in radiology means that a space or cavity has been obliterated by the external application of mass effect – in this case the space around the nerve root obliterated by the disc pressing against it) the right S1 nerve root, which finding was not present on the previous MRI lumbar scan. And this new finding is concordant with the new symptoms of right buttock pain radiating to the right leg which only had their onset after the Thai massage.The right leg sciatica eventually led to a discectomy after failed periradicular steroid injections. Medical Assessor Harrington certificateThe clinical examination findings by Medical Assessor Harrington were consistent with DRE1 giving 0% WPI with no guarding, no dysmetria and no radiculopathy. It is questionable whether there were non verifiable radicular complaints (NVRC’s). Medical Assessor Harrington noted the claimant disclosed no intervening injuries following the subject motor vehicle accident and that he was a difficult historian. There were no NVRC’s consistent with a right sided S1 nerve distribution in the leg reported to the Panel Medical Assessors either. Medical Assessor Machart certificateMedical Assessor Machart’s decision on causation was based on an incomplete history which excluded the interval motorbike accident and the episode with the Thai massage which resulted in the onset of right-sided radicular symptoms affecting the lower extremity for the first time, noting that Dr. Machart had recorded under ‘details of subsequent injury’ – nil. Medical Assessor Machart had also stated that the claimant was a poor historian . Thus, it is evident that neither Medical Assessor had access to the GP and specialist records referring to the subsequent motorbike accident and Thai massage injury, and the claimant did not disclose these accidents to Medical Assessor Harrington nor in appropriate detail to Medical Assessor Machart, allowing him to make a fully informed decision on causation in respect of the need for discectomy surgery.The initial post-accident CT scan of the lumbar spine (October 2015) showed a left-sided L5-S1 disc bulge whereas the subsequent November 2015 MRI showed L5S1 disc bulging without right-sided preponderance.The first reference to right buttock/leg pain does not occur until after the 2016 motorbike accident causing direct injury to the right leg, inclusive of abrasions to the right buttock. Right buttock/lower limb symptoms later intensified following a massage session in mid 2017 causing Mr Wood to consult Dr George (GP) who arranged a series of right hip and right buttock x-rays, ultrasound scans and MRI scans for further evaluation of symptoms. In October 2017, an MRI scan confirmed a paracentral disc protrusion at L5S1 causing compression of the right S1 nerve root. Specialist correspondence at the time such as that of Dr Sears (neurosurgeon) dated 12 March 2018 refers to an eight month history of right buttock/leg pain (i.e. onset of intense symptoms from mid 2017) approximately two years after the motor accident. The latter mentioned right-sided L5/S1 disc lesion causing S1 compression was not present on lumbar spine scans performed during 2015 shortly after the subject motor accident. The right-sided disc protrusion was not present early on after the accident, only developing in association with the right buttock pain/sciatica two years later (around the time of the MBA and Thai massage). A disc protrusion toward the right side with symptoms more than two years after an accident, cannot reasonably be related to the accident.Whilst not within the remit of the review before this Panel, the Panel has determined that a right-sided disc L5-S1 lesion developing two years after the subject motor accident is not causally related, and therefore the subsequent surgery L5/S1 microdiscectomy would not have been reasonable and necessary due to the subject motor accident.”