Younger v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 391
•7 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Younger v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 391 |
| CLAIMANT: | Jeremy Younger |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Dr Geoffrey Curtin |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| DATE OF DECISION: | 7 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant was injured in a motor vehicle accident on 12 June 2017; the dispute related to the assessment of whole person impairment (WPI); whether cervical spine surgery causally related to accident; Motor Accident Compensation Act 1999; Held – anterior cervical discectomy and fusion causally related to accident; at time of accident pre-existing cervical spondylosis but earlier radicular complaints had resolved; cervical spine assessed as Diagnosis Related Estimates (DRE) category IV or 25% WPI; pre-existing impairment assessed as DRE category II or 5% WPI; 20% WPI in respect of cervical spine caused by accident; no dispute as to findings of 5% WPI for lumbar spine; scarring not easily seen and does not concern claimant; assessed at 0% WPI; injures caused by accident give rise to WPI greater than 10%. |
| DETERMINATIONS MADE: | The Panel revokes the Combined Certificate of Medical Assessor Long dated 29 November 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%. · lumbar spine - aggravation of pre-existing asymptomatic spondylitic changes; · cervical spine - aggravation of pre-existing C5/6 and C6/7 spondylosis and foraminal stenosis with a disc protrusion at C6/7, and · scarring. |
STATEMENT OF REASONS
BACKGROUND
Mr Jeremy Younger (the claimant) suffered injury in a serious motor vehicle accident on 12 June 2017 (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Section 57 and 58 of the MAC Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Long. He issued a certificate dated 29 November 2021.
In accordance with s 63(7) of the MAC Act the application for review was made within 28 days after the parties were issued with the certificate of Medical Assessor Long.
On 24 May 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s Delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[3]
[3] Clause 1.2 of the Guidelines.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]
MEDICAL ASSESSMENT UNDER REVIEW
[6] Section 63(3A) of the MAC Act.
The following injuries were referred for assessment:
· neck - aggravation disc degeneration C5/6 C6/7 C7 radiculopathy;
· back - aggravation spondylitic changes lumbar spine, and
· skin scarring of neck.
In his certificate dated 29 November 2021 Medical Assessor Long provided an assessment of 5% whole person impairment (WPI) which is the subject of the application for review filed by the claimant.
Medical Assessor Long noted the claimant had documented symptoms relating to his neck and lower back up until early 2018 when back pain was recorded but not cervical or arm pain. He noted there were no further recorded neck symptoms until the sudden development of neck pain and weakness in the right arm in April 2019. He concluded the development of those symptoms, and the subsequent surgery cannot be linked to the accident.
Medical Assessor Long agreed with Dr Casikar that there was no causal connection between the claimant’s current WPI and the injury sustained in the accident. He also found the scarring on the neck to be minimal but in any event not related to the accident.
Medical Assessor Long found the following injuries were caused by the accident:
· neck aggravation of pre-existing degenerative changes - cervical spine, and
· back aggravation of pre-existing asymptomatic spondylitic changes- lumbar spine.
Medical Assessor Long concluded the claimant had sustained a 5% WPI as a result of injury to the lumbar spine in the accident. He found a 10% WPI of the cervical spine but concluded it was not causally related to the accident.
MATERIAL BEFORE THE REVIEW PANEL
The claimant filed submissions dated 3 January 2021 (more correctly 2022) asserting this application involved an exercise of federal jurisdiction. The Panel issued a Direction to the parties on 3 June 2022 stating it did not consider the application involved an exercise of federal jurisdiction having regard to the decision of Priestly SC, DCJ in Stanton v Winning [2022] NSWDC 104 handed down on 11 April 2022.
The Panel directed each party to file an indexed, paginated bundle of documents.
In response to this direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 233 and marked AD1. The solicitor for the insurer filed a bundle of documents paginated from pages 1 to 2,028 and filed in the portal as AD2.
The claimant also uploaded to the portal an application to admit late documents filed in the portal as AD3. The Delegate of the President in a decision dated 5 July 2022 granted the claimant leave to rely upon a letter from Angela Sdrinis Legal to Moray & Agnew dated 17 June 2022 and the report of Dr John Korber dated 28 February 2022.
In a message dated 1 August 2022 the insurer stated:
“The Insurer requests the Review Panel examine the claimant in person in respect of his alleged physical injuries, as Assessor Long did when he conducted the initial examination. Considering the Review Panel is reviewing the assessment of Assessor Long it only seems appropriate in the circumstances that any examination of the claimant by the Review Panel also be conducted in person”.
The Panel uploaded the following message in reply:
“The Panel refers to the message from the insurer uploaded to the portal on 1 August 2022.
The Panel does not consider a physical examination is required where the real dispute is in relation to causation of the injury to the cervical spine and the surgery undergone by the claimant. The Panel considers it important to review the history to be provided by the claimant but considers this can be effectively done by videoconference, that is, MS Teams. There does not appear to be any dispute about the assessment to the lumbar spine. Videoconference will also allow the Medical Assessors the opportunity to assess the scarring.
The Panel considers a re-examination of the claimant is not required because subsequent to the accident the claimant underwent surgery on 2 May 2019. Any radicular symptoms now present may be related to that surgery. The Panel is able to form an opinion as to causation and whole person impairment having regard to the available medical reports including reports of imaging undergone by the claimant both before and after the accident.
Regardless of whether or not Assessor Long conducted a physical examination the insurer is asked to advise the basis of the request for a physical examination in these circumstances and noting the guiding principle of the PIC set out in section 42 is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
The Panel directs both parties to provide any further submissions as to the necessity for a physical examination on or before COB 5 August 2022”.
On 4 August 2022 the claimant provided the following response:
“The Applicant has not raised any objection to the Review Panel's determination to conduct medical examinations by Video Conferencing. As requested, we now confirm that the Applicant does not object to being medically examined by the Panel members via video using MS Teams video conferencing platform."
On 5 August 2022 the insurer provided the following response:
“Now that you have confirmed the purpose of the video conference is not to undertake a physical examination, the Insurer no longer objects”.
On 20 September 2022 Medical Assessor Dixon and Medical Assessor Curtin assessed the claimant by videoconference using MS Teams.
TREATING MEDICAL RECORDS
Pre-accident medical records
[7] AD2 p 545.
In his report Dr O’Rourke concluded:
“Multilevel degenerative disc change most prominent at C5/6, C6/7 levels where there are broad based disc extrusions and varying degrees of moderate to severe uncovertebral joint hypertrophy and moderate to severe bilateral neural exit foraminal narrowing at both levels with potential for impingement of exiting bilateral C6 nerve roots. No features to suggest left brachial plexopathy. Overall, | think that the disc protrusions at C5/6, C6/7 levels are most likely the source of the patient’s pain.”
MRI of the cervical spine dated 6 October 2011[8]
[8] AD2 p 964.
In his report Dr O’Rourke concluded:
“Stable imaging appearances. Bilateral foramina narrowing at C5/6 and C6/7 due to lobulated osteochondral bar. Also complete effacement of CSF at both levels with the central canal narrowed to about 7mm. No cord signal abnormality.”
Report of Dr M Winder neurosurgeon dated 13 September 2011[9]
[9] AD2 p 1,227.
Dr Winder reviewed the claimant and noted his symptoms had improved after undergoing a left C6/7 foraminal injection. Dr Winder noted he had quite significant disc protrusions at C5/6 and C6/7. He discussed with the claimant the possibility of undergoing surgery either a disc arthroplasty at both levels or as a hybrid construct, that is cervical disc arthroplasty (CDA) at C5/6 and anterior cervical discectomy and fusion at C6/7. When reviewed on 11 October 2011 Dr Winder recommended conservative management noting the claimant was asymptomatic notwithstanding the severe foraminal stenosis at both levels.
Report of Dr M Rogers dated 3 July 2013 and 17 April 2014
Dr Rogers neurosurgeon reported:[10]
“Thank you for asking me to meet with Jeremy Younger in relation to a recent episode of left brachialgia. … During 2011 he had an episode of left brachialgia and was assessed by one of my neurosurgical colleagues in Sydney. The investigations at that time demonstrated severe foraminal stenosis on the left at C5/6 and C6/7. The current MRI scan demonstrates similar changes.”
[10] AD2 p 564.
The claimant was reviewed by Dr Rogers on 17 April 2014 when he reported the claimant’s main complaint was headache and muscle spasm in the posterior aspect of the neck although he was asymptomatic at that time.[11]
[11] AD2 p 557.
MRI of the cervical spine dated 26 June 2013[12]
[12] AD2 p 577.
The report concluded:
“Degenerative disc disease as described above at C5/6 and C6/7 with broad based posterocentral disc protrusion contacting the anterior aspect of the spinal cord effecting mild central spinal canal narrowing at both levels but without evidence of compressive myelopathy. Disc osteophyte complex posteriorly results in bilateral neural foraminal compromise at both levels, most marked on the left side at C5/6. The left C5/6 lateral recess also is compromised.”
Damon Cheng, physiotherapist
In a report dated 23 June 2014 Mr Cheng noted a referral from Dr Joseph on 26 March 2014 for ongoing neck pain.[13] He stated the claimant’s symptoms had completely settled after 12 sessions of physiotherapy, with pain free range of motion and no radiating/referred symptoms to the left upper arm.
[13] AD2 p 556.
Department of Defence medical file
The pre-accident clinical records produced by the Department of Defence include the following relevant records:
19 October 2010
Lower back pain.[14]
8 August 2011
He has developed left arm pain from the mid upper arm radiating down to the fingers. …He has not sustained neck injury and has good ROM with no neck symptoms.[15]
26 March 2014
Dr Joseph- complaints of ongoing pain in back of neck with radiation into occiput. Also experiences L arm pain – brachalgia.[16]
23 April 2015
Acute back pain, pain in between shoulder blades. Referred for physiotherapy
29 July 2015
Left wrist pain, overstretched medial nerve
10 September 2015
Pain, numbness, tingling index and ring finger of left hand, present for two days.
17 March 2016
Pain in neck. Right mid thoracic and medial scapula pain. Symptoms for 4-5 weeks. No specific injury recalled. Gradual onset.
18 March 2016
Pain in neck, complaining of right medial scapula pain improved.
21 March 2016
Pain in neck, ache in right mid-thoracic region.
30 March 2016
Pain in neck. Movement is better, not as uncomfortable and not as frequent – pain only in the right scap area intermittently, dull ache at times. Feels it is improving.
7 April 2016
Pain in neck – pain has fully resolved.
30 November 2016
Physiotherapist - thoracic back pain, improving.
[14] AD2 p 1,289.
[15] AD2 p 1,202.
[16] AD2 p 1,121.
Post-accident treating records
Bowral Hospital
The claimant was conveyed by ambulance to Bowral District Hospital following the accident on 12 June 2017 where he was admitted overnight.[17] The triage comment reads as follows:
“biba – cervical neck pain, back pain and headache post mva, driver of car than ran into back of stationary car at 10 kmph, then rear ended by another vehicle travelling at 100 kmph – his car was a write-off. Self extricated then laid self on side of road.”
[17] AD2 p 451.
The pre-arrival information records:
“Has central cervical neck pain, no abnormality found on palpation, headache on top of head, ?hit on steering wheel, no airbags in car, has lower thoracic/upper lumbar back pain. No motor or sensory deficits, walking at scene, no loc - full recall of events.”[18]
[18] AD1 p 66.
A CT scan of the brain, cervical spine and lumbar spine undergone at Bowral District Hospital did not identify any acute injury.[19]
[19] AD1 p 71.
X-ray of the lumbar spine dated 28 July 2017
The claimant underwent an X-ray of the lumbar spine. The findings were reported as follows:
“Normal vertebral body height and alignment is maintained. Normal intervertebral disc spaces are maintained. Minor anterior osteophyte lipping at L5/S1. The bones are otherwise normal in appearance. No concerning osseous lesion. Normal appearance of the facet joints”.
Department of Defence medical file
The post-accident clinical records produced by the Department of Defence include the following relevant records:[20]
[20] AD2 p 86.
14 June 2017[21]
Dr Wu reported the accident two days earlier and recorded pain in the lower back and neck although he also reported full range of movement of the neck and spine.
19 June 2017
Dr Wu - history of MVA on 12 June 2017. Much improved, but still has discomfort left loin area.
21 June 2017
Physiotherapist – MVA 10/7 ago, has had 5/7 off work so far. Was rear ended and hit car in front…has general soreness through Lx (lumbar). Agg R shoulder…
28 June 2017
Dr Dunstan - back pain largely resolved now. Fit for full duties.
19 July 2017[22]
Sick bay on HMAS Success - “mid thoracic pain constant ache from a.m. until goes to sleep for 1/52. Dull ache constant 5/10 but reduces with Panadol to 2/10. O/E pain on palpation patient in mid thoracic area on vertebrae. Pain on flexion but full range of movement.”
27 July 2017
Physiotherapist - ongoing low back pain from motor vehicle accident, flared up while deployed at sea
28 July 2017
Dr Macleod - onset of lower back pain getting out of bed.
2 August 2017[23]
Lower back pain. Ongoing since car accident 5/52 ago. Aggravated his arm. Dull ache. O/E full rom nil obvious deformity. Awaiting results of scan taken 28/7/17. Continue with previous treatment of hot pack, anti-inflammatories and Panadol.
30 August 2017
Physiotherapist - thoracic back pain.
6 September 2017
Physiotherapist - thoracic back pain, some improvement
15 September 2017
Physiotherapist - thoracic back, discomfort is not as intense but still problematic.
20 September 2017
Physiotherapist - thoracic back pain.
29 September 2017
Physiotherapist - the Tx (thoracic) is settling, continues to have more movement. Tingling continues in the arm into the upper arm C5 distribution intermittently.
10 October 2017
Physiotherapist – no pain anymore in the Tx (thoracic) area. 13 hour drive in the last 2 hours had some discomfort in the right shoulder area, otherwise no pain.
18 October 2017
Physiotherapist - thoracic back pain.
25 October 2017
Physiotherapist - thoracic pain, ongoing tingling in the shoulder area when riding motor bike with right arm up in front of body.
31 October 2017
Physiotherapist – “…noticed that he is using the left side more than the right. Some post exercise muscle soreness but not aggravating his pain. Reports slight tingling dorsum right hand in the hand towards index finger (C7 distribution) is intermittent…Reports the usual cervico-thoracic junction discomfort/ache and some top of shoulder ache also.”
7 November 2017
Physiotherapist – continues to have some tingling in the top of the shoulder…. not feeling the right side upper Tx discomfort recently, more the Cx (cervical) and shoulder area.
9 November 2017
Dr Panaretos - radiculopathy, paraesthesia and pain in right upper limb since MVA June 2017, lateral aspect upper and lower arm extending to index finger.
15 November 2017
Physiotherapist - thoracic back pain…. Going ok, tingling
1-2 times a day, still finds some tingling in arm when wakes, likely due to position.28 November 2017
Dr Panaretos - MRI cervical difficult to interpret – right shoulder pain and paraesthesia right upper limb to C8 dermatome has slowly been improving…. Referral to Dr Dan neurosurgeon.
8 December 2017
Physiotherapist - “… reports only getting arm pain/symptoms once a day. Tight and sore in the cervicothoracic junction at times. Depends on what activities has been doing at work...”
8 January 2018
Physiotherapist -thoracic back pain. Had some shoulder/Tx discomfort prior to Christmas when on leave, saw Civi GP, given Panadeine Forte for a few days eased off. Was having pain at rest, pain in the shoulder blade area, has improved since then, the tingling and arm pain not problematic recently.
17 January 2018
Physiotherapist – symptoms consistent with hx degenerative changes.
31 January 2018
LSMED Tahnee - lower back pain radiates down both legs for last two days, no specific incident or trauma.
5 February 2018
Physiotherapist – presenting with hx (history) of LBP (lower back pain) and cx (cervical) pain.
9 February 2018
Physiotherapist - lower back pain improving with physiotherapy and gym.
1 March 2018
Physiotherapist - low back pain but been pain free for more than 2/52.
17 March 2018
Improved back pain, pain free for last two weeks.
20 March 2018
Medical assessment by Dr Porter. Anxious, bad time on HMAS Success for past two years, bad command management. Gets depressed, not sleeping wife and four kids all autistic living Point Cook, family issues. On examination head, face, neck, scalp – normal.
22 March 2018
Physiotherapist - lower back pain again with sitting at work, attending physiotherapy.
4 April 2018
Dr Rolls - back pain resolved, needs to lose weight
12 April 2018
Physiotherapist – some T9-L2 pain and tension. No pain in sitting just rising from sitting.
30 April 2018
Physiotherapist - back pain minimal with treatment.
15 May 2018
Dr Dwyer review - coping well in the workplace
9 August 2018
Dr Lew - complete DVA claim for thoracic back pain, tinnitus, hearing loss and plantar fasciitis.
31 August 2018
Dr Chan - left wrist pain for two weeks when doing push ups.
1 October 2018
Dr Lew – back pain, completed DVA claim for thoracolumbar pain.
14 February 2019
Physiotherapist - onset 3 weeks ago with right sided cervical spine stiffness, no specific injury
8 March 2019
Physiotherapist - some improvement of cervical pain.
22 March 2019
Pain and stiffness in cervical spine.
3 April 2019
Leut McFarlane – abnormal muscle twitching in hand, upper R chest and back. Reported nerve pain in right wrist.
[21] AD2 p 376.
[22] AD2 p 374.
[23] AD2 p 373.
Medical certificate
Dr Charles Lee completed the medical certificate appended to the Personal Injury Claim Form on 9 October 2018. He diagnosed neck pain and headaches.
MRI scan of the cervical spine dated 21 November 2017[24]
[24] AD1 p 92.
Dr R Ward reported:
“Interval development of increased cord signal at C5/C6 due to broad disc osteophyte complexes flattening the anterior cord.
At C6/C7 the cord is impinged anteriorly to the right with expected subarticular C6 nerve root impingement and bilateral foraminal C6 and C7 contact.
Early development of right paracentral C7/T1 end plate overgrowth without foraminal conflict since prior study of 2011.”
Report of Dr Noel Dan dated 7 December 2017[25]
[25] AD1 p 93.
Dr Dan neurosurgeon obtained a history of neck and right shoulder pain since the accident. The doctor noted symptoms of tingling to the right index finger and sometimes the thumb, two or three times a day lasting 5 to 20 minutes.
28. Dr Dan reviewed the previous MRI scans of the cervical spine conducted on 29 July 2011, 5 October 2011 and 26 June 2013. Each showed the disc osteophyte complex at C5-7 impacting the spinal cord particularly at C5/6 but also at C6/7. Whereas the foramina was narrowed at those levels, Dr Dan found there were no abnormal spinal cord signals in the earlier scans.
Dr Dan reviewed the post-accident MRI scan of 21 November 2017 and commented:
“The MRI of 21.11.17 showed some minor changes at C3/4 and C7/T1 but was predominantly at C6/7 with a fair degree of change at C5/6. There was, although it was difficult to see on the disc, some very modest cord signal changes at C5/6.”
Dr Myron Rogers, neurosurgeon
The claimant saw Dr Rogers, neurosurgeon on 14 February 2018.[26] In a report to Cerberus Health Centre he reported:
“A couple of months ago he saw my colleague, Noel Dan, in Sydney in relation to paraesthesia which radiated down the right arm and involved the thumb and index finger. Over the past eight weeks there has been further improvement of the symptoms and episodes are now only occurring once every few days and only last for several minutes The neurologic examination today of the upper limbs demonstrated all reflexes in the upper and lower limbs to be equal and symmetric. In the upper limbs there was no muscle wasting. There was no fasciculation and | could not detect any weakness.”
Dr Patrick Chan, neurosurgeon
[26] AD1 p 97.
The claimant was referred to Dr Chan. On 5 April 2019 he noted the claimant’s involvement in the accident and wrote to Dr Alexandra McFarlane as follows:[27]
“He had been well until two days ago. He described he had interscapular pain, and inability to extend his right hand and weakness in his fine movements with loss of dexterity He also described spasm in his right axilla and right chest wall There was no radicular pain”
[27] AD1 p 108.
Dr Chan suggested the claimant undergo an urgent MRI scan and concluded:
“Mr Younger presented with right-hand weakness The appearance is suggestive of myelopathic hands Other possibilities are brachial plexopathy or peripheral neural entrapment”.
MRI of the cervical spine/brachial plexus dated 8 April 2019
The claimant underwent an MRI of the cervical spine/brachial plexus on 8 April 2019.[28] The report concludes:
“1. A combination of disc degenerative changes and marginal osteophyte complex formation result in bilateral moderate to severe mid to lower cervical exit foraminal stenoses as described
2. No superimposed brachial plexopathy identified.”
MRI of the right shoulder and thoracolumbar spine dated 11 April 2019[29]
[28] AD1 p 99.
[29] AD2 p 580.
The report of the MRI of the right shoulder by Dr Tim Dunshea concludes:
“1. Inferior labral tear extending to the anteroinferior quadrant with an 11mm bilobed paralabral cyst. No sign of a Hill-Sachs deformity.
2. Minor degeneration of the posterosuperior labrum without a tear.
3. Mild rotator cuff tendinopathy with no tear. Mild fluid in the overlying subacromial/subdeltoid bursa.”
The report of the MRI of the thoracolumbar spine by Dr Tim Dunshea concludes:
“1. Multilevel mid to lower thoracic disc degeneration and disc bulging with mild central canal narrowing and flattening of the cord at several levels. No altered cord signal. No high grade central canal stenosis.
2. Mild foraminal narrowing at several levels without convincing nerve root compression.
3. Moderate L5-S1 disc degeneration with disc bulging and annular fissuring. No high grade central canal stenosis. Mild left L5 foraminal narrowing without nerve root compression.”
Dr Chan
The claimant was reviewed by Dr Chan on 15 April 2019.[30] He diagnosed significant right cervical brachialgia associated with weakness of the C7/8 distribution. He thought the cause was likely to be cervical spondylosis.
[30] AD1 p 109.
The claimant underwent surgery performed by Dr Chan on 2 May 2019 consisting of:
· an anterior C5/6 and C6/7 discectomy and foraminotomy;
· C5/6 and C6/7 inter body fusion, and
· C5 to C7 cervical plate fixation.[31]
[31] AD1 p 111.
An CT scan of the cervical spine dated 3 May 2019 confirms a good postoperative result.
On 5 May 2020 Dr Chan reported the claimant had recovered well from the surgery but had become concerned about his constant lower back pain, which was exacerbated by prolonged standing, walking and sitting.[32]
[32] AD2 p 619.
In a report dated 10 April 2021 Dr Chan reported that one year after surgery the claimant’s right upper limb symptoms and strength were much improved and nerve conduction studies conducted the preceding day showed significant improvement.[33]
[33] AD1 p 224.
Dr Chan indicated:
“As a result of the accident on 12 June 2017, Mr Jeremy Younger sustained significant right cervical brachialgia secondary to right C5, C6 and right C6, C7 foraminal stenosis with resulting right C6 and right C7 radiculopathy He also has mechanical axial low back pain with underlying L4/5 and L5/S1 spondylosis.”
Dr Chan expressed the following opinion as to causation:
“In my opinion, the accident contributed to the need for the cervical surgery performed by me. The opinion was based on the history given by the patient relating to the onset of symptoms of his right brachialgia with the timing of the accident. His previous right cervical brachialgia was back in 2011 which resolved with steroid injection. The exacerbation of symptoms happened again after the car accident in June 2017. Reviewing the extent of the car damage on the photograph provided, the force of the impact will be sufficient to cause aggravation of his underlying neck pathology and back pain.”
Dr Chan provided a supplementary report dated 22 August 2022.[34] He referred to his review of the claimant by telehealth on 27 August 2021. He reported Mr Younger was managing well and had only residual tightness and locking of his right thumb and residual weakness of his right ring and little finger.
[34] AD5 p 3
Dr Chan reviewed the report of Dr Korber dated 28 February 2022 and stated he agreed with Dr Korber’s opinion that Mr Younger sustained a right-sided C6-C7 disc herniation as a result of the accident based on the fact that the symptoms of right brachialgia became more prominent after the accident and the weakness more significant. He also reported the scan following the accident showed the right C6-C7 disc herniation to be more prominent and the loss of disc height more obvious than on the earlier scans.
Dr Richard Gerraty, neurologist
In a letter to Dr Chan dated 17 April 2019 Dr Gerraty[35] wrote:
[35] AD1 p 102.
“In 2017 he was in a motor vehicle accident in which he struck the car in front of him at around 40kph, but then a faster car hit him in the rear and spun him around.
He had scans and had two weeks off work but was reasonably well after that, but in the week prior to us seeing him he woke up with a painless weakness of the right arm and reinvestigation showed significant cervical column discase with some narrowing of the canal and flattening of the cord, but I could not see any high signal in the cord. The disc degeneration is worst at C5,6 and C6,7 and at both levels he has significant exit foraminal bony narrowing. The right C6,7 exit foramen is certainly narrowed over a considerable length.
His physical examination shows weakness in the hand with a finger drop and partial wrist drop and also weakness in triceps. The C5 and C7 reflexes are depressed. There are no long tract signs in the lower limbs.
In the hand, even flattening his hand on the table, he has weakness of adduction and abduction, but the long flexors are strong and APB is strong,
There is no sensory loss.
I think all this fits with a C7 radiculopathy and the weakness within the hand is unlikely to be a selective ulnar neuropathy or T1 radiculopathy.
I agree with your plan to do a two level discectomy and fusion.”
Dajana Dedic, Peninsula Hand Therapy
In a report dated 24 September 2019 Dajana Dedic, of Peninsula Hand Therapy noted the claimant had developed a palsy in his radial nerve distribution following the surgery.[36]
[36] AD2 p 568.
The claimant underwent nerve conduction/EMG studies on 12 November 2019 which showed “purely motor proximal right median and right radial mononeuropathies without associated demyelinating features”.
Dr Swee Teng Tan, neurologist.
Dr Tan neurologist concluded in a report dated 12 November 2019 that the most likely diagnosis was motor mononeuropathy multiplex although another possible diagnosis was multifocal motor neuropathy whilst a less likely cause was an active right C7 radiculopathy.[37] Dr Tan referred the claimant for an MRI looking for any abnormality in the radial and median nerves.
[37] AD1 p 119.
The claimant underwent an MRI of the cervical spine and right upper arm and forearm on 21 November 2019 which did not show any abnormality of the median or radial nerves.[38]
[38] AD2 p 592.
Dr Tan reviewed the claimant on 31 March 2020 and again on 26 May 2020 and noted a rapid improvement in his right upper limb weakness.[39] She concluded there had been spontaneous improvement in his right upper limb mononeuropathy multiplex.
[39] AD2 pp 615 and 623.
Photographs
Photographs showed extensive and irreparable damage to the front and rear of the claimant’s vehicle.
Medico-legal reports
Reports of Dr Jonathon Hooper, orthopaedic specialist[40]
[40] AD1 p 185.
Dr Hooper reviewed the claimant at the request of his lawyers. In a report dated 5 March 2019 he assessed a 0% WPI for the cervical spine and a 5% WPI for the lumbar spine.
Dr Hooper reported the claimant’s complaints were of headache and low back pain. His neck was said to be okay, but he did complain of some subjective weakness involving his left arm.
He expressed the following opinion:
“The diagnosis is of aggravation of spondylitic changes in his cervical and lumbar spine with an associated headache. This aggravation is a direct result of the road traffic accident of 12 June 2017.
Mr Younger’s symptoms have been going on now for some two years it is unlikely they will ameliorate completely, and they are in part due to the degenerative changes in his spine that have been aggravated by the motor car accident. “
Dr Hooper reviewed the claimant again and provided a supplementary report dated 19 November 2019 where he stated:[41]
“This man did have pre-existing cervical and lumbar degenerative spondylosis had a motor car accident on 12 June 2017 and this aggravated and exacerbated and precipitated symptoms in his neck and low back. When seen by me, Dr Rogers and Dr Dan in March of this year, we felt his condition was stable. However, he tells me that some time after March he developed sudden onset of pain and weakness in his right arm and that necessitated a two level spinal fusion and decompression.”
[41] AD1 p 189.
Dr Hooper concluded the claimant had sustained:
“…neck and back discomfort due to aggravation of lumbar and cervical spondylosis and radial nerve impairment post operatively.”
He concluded the claimant’s condition was due to an aggravation of lumbar and cervical spondylosis caused by the accident. He assessed a 12% WPI based on the two level cervical decompression and fusion and because of right radial nerve deficiency a 3% WPI. He also assessed a 5% WPI in respect of the lumbar spine.
Dr Vidyasagar Casikar, neurosurgeon
The claimant was assessed by Dr Casikar at the request of the insurer.[42] In a report dated 14 December 2020 he expressed the following opinion as to causation:
“On 29/04/2019, nearly two years after the original injury, he had developed an acute wrist drop. There was only motor involvement. There was no sensory loss. If there was a C7 neuropathy, the C7 nerve root carries both sensory and motor nerves. If there was involvement of the nerve root, he should have had both sensory and motor problems. An extensive motor involvement without any evidence of sensory loss suggests the diagnosis of mononeuritis. This is a self- limiting condition. He improved over a period of time. The cervical surgery was, in my opinion, not indicated for this condition. He required mainly wrist support to prevent any stiffness in the wrist. He has now recovered nearly completely. There is a little weakness in his ulnar and ring fingers. There is no evidence of sensory loss. This will recover on its own.
The neurologist, Dr Tan, had suggested the possibility of a motor neuropathy, | believe this is a case of mononeuritis simplex, and this is a spontaneous neurological condition unrelated to the road traffic accident or to multiple investigations and the cervical surgery.”
[42] AD2 p 658.
Dr Casikar also concluded the claimant had moderate age-related degenerative changes in the cervical spine, noting the X-ray shows evidence of very moderate C5/6 and C6/7 stenosis. However, he stated these changes were not related to the accident.
Report of Dr John Korber, radiologist dated 28 February 2022[43]
[43] AD3 p 5.
Dr Korber provided a report at the request of the insurer. He reviewed the following imaging:
· cervical spine MRI, 26 June 2013;
· cervical spine CT, 12 June 2017;
· cervical spine MRI, 21 November 2017;
· cervical spine MRI, 8 April 2019, and
· anterior cervical discectomy and fusion, 2 May 2019.
Dr Korber was of the view the post-accident cervical spine MRI (12 November 2017) demonstrated a moderately large right-sided C6/7 disc herniation that was not present in the 2013 study. He stated he could not say on which day that disc herniation occurred noting there was a five month interval between the accident and the MRI. However, noting it was a high-speed accident, Dr Korber thought it was reasonable that this occurred as a result of the accident.
Dr Korber also stated:
”Another radiological feature in favour of the disc herniation being acute, at the time of imaging is that the C6/7 disc space becomes fairly rapidly narrow between 2017 and 2019, whereas from 2013 to 2017 it had not altered. This a feature of acute herniations. Another feature of acute herniations is that they become smaller. From all the clinical data, it is evident that the right C6/7 level is the cause of the symptoms.”
Dr Korber concluded the claimant had cervical spondylosis at C5/6 and C6/7 prior to the accident and it would be reasonable that the disc herniation could have resulted consequent upon the accident.
Dr Casikar, dated 16 June 2021
Dr Casikar was asked to comment on the report of Dr Korber. Dr Casikar expressed the view that if the C6/7 disc protrusion was because of the accident there should be evidence of soft tissue injury surrounding the area.
Further he stated isolated disc protrusions are commonly seen in radiological investigations and radiological findings need to be taken in view of the clinical findings.
In Dr Casikar’s view a motor weakness without sensory loss is not due to any neurological compression. Where there was no associated sensory loss Dr Casikar remained of the view the isolated profound motor weakness suggests mononeuritis complex.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 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.”
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 8 November 2021 in respect of the permanent impairment dispute. The claimant submitted he frequently and consistently complained of symptoms in the neck radiating down the right arm, thoracic and lumbar spines.
The claimant submitted he was effectively asymptomatic until the accident and as such the accident aggravated and/or exacerbated the previously asymptomatic condition in the cervical spine. The claimant relies upon the opinion of Dr Hooper.
The claimant provided submissions dated 3 January 2022.
The claimant submits his pre-existing cervical symptoms and pathology were left sided as evidenced by the MRI scans of 5 October 2011 and 26 June 2013 and the reports of Drs Winder and Rogers. After the accident the claimant submits the neck symptoms and pathology were right sided having regard to the MRI scans of 21 November 2017 and 8 April 2019, and the reports of Drs Dan, Rogers, and Chan.
The claimant submits the accident accelerated and exacerbated the underlying disease process in the cervical spine bringing forward the need for cervical fusion.
The claimant submits both Medical Assessor Long and the insurer incorrectly interpreted the Department of Defence medical entry on 20 March 2018 noting the claimant had undergone an overall medical examination including the lymphatic system, the endocrine system, vascular system and genitourinary system. Further, whilst Dr Porter noted the claimant had seen a neurosurgeon recently for neck problems and was “given the all-clear”, Dr Porter clearly relied on the recent opinion of Dr Rogers and only conducted a cursory examination of the claimant’s neck. The claimant also notes the entry of Dr Porter failed to have regard to Dr Rogers specific opinion. Specifically, Dr Rogers noted:
“Over the last 8 weeks there has been further improvement of the symptoms and the episodes are now only occurring once every few days and only last for several minutes”.
The claimant submits that the words “normal” and “well” did not mean that his symptoms had completely resolved in 2018 and submits that had he been provided with an opportunity to explain the alleged inconsistencies he would have explained that the neck and right upper limb symptoms persisted throughout 2018 but he soldiered on by going about his “normal” life as well as possible and that he was coping “well” until the severe acceleration, exacerbation and deterioration of the right-sided pathology of the cervical spine in April 2019.
The claimant submits Medical Assessor Long placed undue weight on the apparent absence of contemporaneous records of neck and right upper limb complaints after 20 March 2018 noting the Court of Appeal cautioned against placing too much significance on clinical entries made by “busy doctors”: Davis v The Council of the City of Wagga Wagga[44].
[44] [2004] NSWCA 34 at [35] and [36].
The claimant also submits there is no evidence of a novus actus in 2018 or 2019, noting the claimant was performing teaching duties at HMAS Cerberus after the accident.
Insurer’s submissions
The insurer provided submissions dated 10 November 2021.
The insurer submits it is clear from the post-accident clinical records produced by the Department of Defence that by 20 March 2018, on examination by the Navy doctor the claimant’s neck was normal and there are no further recorded complaints of neck pain from 20 March 2018 until his presentation on 14 February 2019 (some nine months later), with a history of an onset three weeks earlier with right sided cervical spine stiffness but no specific injury. The clinical notes show that the only complaints the claimant made were in relation to his back in March, April, August and October 2018, all of which he related to sitting at work and resolved with physiotherapy.
The insurer notes when the claimant saw Dr Dan, neurosurgeon, in December 2017 he recommended conservative treatment only and to return if his symptoms deteriorated. Further on 14 February 2018 Dr Rogers, neurosurgeon stated,
“As Jeremy’s symptoms are progressively settling, there is nothing that currently needs to be done.”
Thereafter, the claimant did not seek further specialist treatment in relation to his neck until he saw Dr Chan on 5 April 2019. The insurer submits that the claimant’s sudden onset of symptoms in April 2019 were unrelated to the injuries sustained in the accident and are due to the natural progression of his pre-existing degenerative disease.
The insurer notes that on 5 March 2019 Dr Hooper considered the radiological investigations of the cervical and lumbar spine showed degenerative changes compatible with the claimant’s years. At that time, he found 0% WPI in respect of the cervical spine. Even though Dr Hooper assessed a 12% WPI as a result of cervical spine surgery when he re-assessed the claimant in November 2019 the insurer submits the surgery and finding of WPI is not causally related to the accident.
The insurer also relies upon the opinion of Dr Casikar who found what the claimant suffered in April 2019 was a case of mononeuritis simplex, which is a spontaneous neurological condition unrelated to the accident and the cervical surgery.
EXAMINATION
Medical Assessor Dixon and Medical Assessor Curtin assessed Mr Younger by video conference through MS Teams on 20 September 2022.
The accident occurred on 12 June 2017. Mr Younger was the driver of a vehicle which collided with the rear of another vehicle which had stopped suddenly. The vehicle behind Mr Younger did not have time to stop and rear ended Mr Younger’s vehicle at approximately 80 kmph driving it into the vehicle in front. His vehicle was subsequently towed away and written off. Mr Younger was wearing a seatbelt at the time and the airbags did not deploy.
At the time he sustained neck and back pain and was taken by ambulance to Bowral Hospital where his presenting history was central cervical neck pain with headache on the top of his head and lower thoracic upper back pain, as well as seatbelt bruising about his chest and lower abdomen, and right shoulder brachalgia. A CT scan of the brain, cervical and lumbar spine showed no acute abnormality, although there were degenerative changes noted in the lower cervical spine and in the lumbar spine.
Two days following the accident, the claimant reported to HMAS Success (he was in the Navy at the time of the subject accident) complaining of pain which he rated at 7 out of 10 in the lower back and neck. At that stage he had a full range of motion of his neck and spine. He had physiotherapy, was prescribed analgesia and remained off work for two weeks.
On 14 June 2017 Mr Younger saw his general practitioner, Dr Charles Lew, complaining of right para-spinal and transverse lumbar pain and low thoracic pain and upper lumbar pain.
On 19 July 2017 the clinical records of HMAS Success recorded mid thoracic pain with tenderness in the mid thoracic area. Mr Younger was treated with anti-inflammatories and Panadol. Abrasions to both shins where his legs had gone under the dashboard were healing. Emotional changes were also documented, and Mr Younger reiterated that he had some post-traumatic stress issues after the accident.
The subsequent clinical record of HMAS Success of 2 August 2017 noted low back pain with a full range of motion although in his certificate dated 1 October 2017 Dr Lew reported the claimant had neck pain and headaches at the time of his examination on 19 June 2017.
He was subsequently reviewed by Dr Dan on 7 December 2017 who reported since the accident Mr Younger had experienced right shoulder and neck pain with tingling two to three times a day involving the right index finger and sometimes the thumb, and he had reduced neck motion to the right.
Mr Younger was subsequently reviewed by Dr Rogers in Melbourne on 14 February 2018, but no operative intervention was suggested.
Mr Younger reported ongoing pain in his lower back on 31 January 2018 and on 14 February 2019 it was reported that three weeks previously there had been the onset of right sided neck pain and stiffness but no specific injury.
Mr Younger then continued to have pain in his neck with brachalgia and pain and sensory changes in the right arm. He attended Dr Chan on 5 April 2019 who found as well as inter-scapular pain Mr Younger had an inability to extend his right hand, weakness with fine movements and loss of dexterity and spasm in the right axilla and right chest wall. At that stage there was no radicular complaint.
An MRI was arranged on 29 July 2019. Dr Chan indicated the claimant presented with right hand weakness and thought he may have had myelopathic hands or possibly brachial plexopathy or peripheral neural entrapment.
The Panel accepts the conclusion of Dr Korber that the MRI scan of 12 November 2017 demonstrated a moderately large right-sided C6/7 disc herniation that was not present in the 2013 study, although it is accepted the claimant had cervical spondylosis at C5/6 and C6/7 prior to the accident.
Dr Chan, having reviewed the report of Dr Korber, radiologist noted there had been more prominent progress of the C6/7 disc protrusion at a period sometime after the accident which was consistent with the claimant’s symptoms of right brachalgia becoming more prominent following the accident and the weakness became more significant.
Having regard to the opinion of Dr Korber, Dr Chan stated as a result of the accident, the claimant had sustained significant right cervical brachalgia, secondary to right C5/6 and C6/7 foraminal stenosis with the additional disc protrusion at C6/7 and radiculopathy which required two level anterior cervical discectomy and fusion at C5/6 and C6/7.
In his operative findings of 2 May 2019 Dr Chan noted there was significant loss of disc height and extensive disc osteophyte complexes and spinal cord compression as well as right C5/6 and right C6/7 foraminal stenosis and right C7 nerve root compression. An anterior C5/6, C6/7 discectomy was performed together with inter-body fusion and segmental fixation.
In April 2021, one year following surgery the claimant reported his right upper limb symptoms as well as his strength had improved, and Dr Chan noted nerve conduction studies showed significant improvement.
Medical Assessors Dixon and Curtin found the claimant’s presentation during the videoconference to be straightforward. When asked about the apparent gap in treatment between March 2018 and February 2019 Mr Younger was adamant he continued to have pain in his neck and lower back and symptoms affecting his right arm and hand with paraesthesia and pain down the lateral aspect of the arm, extending to the index finger.
He also confirmed there were no intervening events which may have been causative of an exacerbation of his neck pain in early 2019.
During the assessment by videoconference, Mr Younger indicated he still had restricted movement of his neck to the right which hampered his ability to reverse park, change lanes and check his blind spots when driving.
In conclusion Dr Chan indicated Mr Younger had sustained significant right cervical brachalgia secondary to the right C5/6 and C6/7 foraminal stenosis resulting in right C6 and right C7 radiculopathy. In his opinion the accident contributed to the need for cervical surgery. This opinion was based on the history given by the claimant relating to the onset of symptoms of right brachalgia and the aggravation of symptoms after the accident on 2 June 2017. Whilst the claimant had symptoms of right brachalgia in 2010 they resolved with a steroid injection.
DIAGNOSIS AND CAUSATION
The Panel found the claimant was consistent in his presentation and following discussion with the claimant, the panel felt that causation was established. Prior to the accident the claimant reported a symptomatic neck condition with left brachalgia (arm pain). An MRI of the brachial plexus and cervical spine on 1 August 2011 showed multi-level degenerative change most prominent at C5/6 and C6/7 levels with broad based disc extrusions but no features suggestive of left brachial plexopathy. The MRI scan of 6 October 2011 showed stable imaging appearances with bilateral foraminal narrowing at C5/6 and C6/7 due to lobulated osteochondral bar with narrowing of the central canal but no cord signal abnormality.
The claimant noted that he saw a neurosurgeon on 13 September 2011 for neck pain and left brachalgia but symptoms improved after he underwent a left C6/7 foraminal injection. Dr Winder recommended conservative management noting the claimant was asymptomatic.
The claimant was subsequently seen by another neurosurgeon, Dr Rogers on 17 April 2014 who noted the claimant’s episodes of left brachalgia in 2011 had settled, and on 23 June 2014 Damon Cheng reported symptoms in the claimant’s neck had completely settled after 12 sessions of physiotherapy with a pain free range of motion and no more radiation or referred symptoms to the left upper arm.
The Panel observed that the claimant’s story was consistent with having had neck pain and stiffness prior to the accident which settled after the left C6/7 foraminal injection for left brachalgia and following physiotherapy in 2014. Following the accident on 12 June 2017 Mr Younger had neck pain and stiffness and right arm brachalgia with sensory changes to the index finger and thumb.
The Panel does not accept the opinion of Dr Casikar as to diagnosis. In the Panel’s experience mononeuritis simplex or mononeuritis complex is more commonly associated with other neurological conditions. The Panel prefers the opinions of Dr Chan and Dr Korber.
The Panel notes the accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. Having regard to the extent of damage to the vehicles the Panel finds this was a major motor vehicle accident where the severity of the force of the impact was sufficient to cause substantial aggravation to the claimant’s pre-existing C5/6 and C6/7 spondylosis and foraminal stenosis with a disc protrusion at C6/7. The Panel notes the C6/7 disc protrusion enlarged after the accident and the brachalgia was on the right, whereas it was previously left sided. Further, it responded to the C5/6 and C6/7 anterior cervical discectomy and fusion which the Panel finds was reasonable and necessary and was caused by the accident.
The Panel notes there is no dispute as to the findings of Medical Assessor Long in respect of the lumbar spine and agrees with his finding that the accident caused an aggravation of pre-existing asymptomatic spondylitic changes in the lumbar spine.
ASSESSMENT OF PERMANENT IMPAIRMENT
Lumbar spine
The Panel adopts the findings of Medical Assessor Long and finds the claimant has sustained a DRE lumbosacral category II impairment which equates to an assessment of 5% WPI caused by the accident.
Cervical spine
The Panel finds the C5/6 and C6/7 anterior cervical discectomy and fusion is causally related to the accident. Clause 6.145 of the Guidelines provides that multilevel structural compromise includes spinal fusion and according to cl 6.143 of the Guidelines is assessed as either DRE categories IV or V. Table 73 of AMA 4 places the claimant in DRE cervicothoracic category IV or 25% WPI.
The Panel finds there is objective evidence of a pre-existing symptomatic permanent impairment before the accident. The Panel finds at the time of the accident the claimant had significant cervical spondylosis but notes earlier radicular complaints had resolved. The Panel considers the pre-existing impairment would be assessed as DRE cervicothoracic category II or 5% WPI on the basis the claimant had minor impairment, clinical signs of neck injury without radiculopathy or loss of motion segment integrity.
Accordingly, the Panel finds the claimant has a 20% WPI caused by the accident in respect of the cervical spine.
Scarring
The Panel also had the opportunity of inspecting the claimant’s surgical scar at the right side of the anterior neck. The scar was pale and flat and not easily seen. The claimant reported that he was not concerned by the scar. Under the TEMSKI Scale in the Guidelines this would attract a 0% WPI.
Applying the combined values chart the overall impairment is 24% WPI.
PANEL DECISION
The Panel revokes the Medical Assessment Certificate of Medical Assessor Long dated 29 November 2021 and issues a new certificate.
The Panel has found that the accident was a cause of the following injuries which give rise to a permanent impairment of 24%:
· lumbar spine - aggravation of pre-existing asymptomatic spondylitic changes;
· cervical spine - aggravation of pre-existing C5/6 and C6/7 spondylosis and foraminal stenosis with a disc protrusion at C6/7, and
· scarring.
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