Youssef v QBE Insurance (Australia) Limited
[2022] NSWPICMP 492
•1 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Youssef v QBE Insurance (Australia) Limited [2022] NSWPICMP 492 |
| CLAIMANT: | Mohammad Youssef |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 1 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant was injured in a motor vehicle accident on 21 November 2018; the dispute related to the assessment of whole person impairment (WPI); Motor Accident Injuries Act 2017; fractured sternum; neck; mid back; lower back; stomach (gastrointestinal); Held – cervical spine injury, thoracic spine injury, lumbar spine injury, sternum fracture causally related to accident; gastrointestinal injury not causally related; lack of temporal connection; injury to thoracic spine recovered; uncomplicated sternal fractures not attract assessable permanent impairment; cervical spine and lumbar spine assessed as diagnosis related estimate (DRE) category 1 or 0% WPI. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated 3 March 2022 and issues a new certificate determining that the following injuries were caused by the motor accident: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury, and · sternum – fracture. The Panel finds the following injury was not caused by the accident: · stomach – gastrointestinal The Panel finds the following injuries give rise to a whole person impairment of 0%: · cervical spine – soft tissue injury, and · lumbar spine – soft tissue injury. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 21 November 2018 Mr Mohammad Youssef (the claimant) was a rear seat passenger wearing a seatbelt proceeding along Mill Street, Chester Hill when the driver fell asleep and hit a trailer parked on the left side of the street.
Mr Youssef asserts he sustained the following injuries in the accident:
(a) fractured sternum;
(b) injury to the neck;
(c) injury to the mid back;
(d) injury to the lower back, and
(e) psychological injury.
Mr Youssef has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Youssef under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Youssef as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
Certificate of Medical Assessor Korbel
Medical Assessor Edward Korbel assessed the claimant on 3 May 2022 and issued a certificate dated 13 May 2022.
Medical Assessor Korbel was asked to undertake an assessment of permanent impairment of erectile dysfunction and loss of libido.
Medical Assessor Korbel concluded the claimant’s problems were related to his mental status, the orthopaedic pain and the medications Lovan and Lyrica which he had been prescribed following the accident.
In his certificate he found that erectile dysfunction and loss of libido was caused by the accident but resulted in 0% whole person impairment (WPI).
Certificate of Medical Assessor Truskett
Medical Assessor Truskett assessed Mr Youssef on 18 February 2022 and issued a certificate dated 3 March 2022 certifying 0% WPI arising out of injury to the cervical spine and injury to the lumbar spine caused by the accident.[1]
[1] AD1 p 4.
He found soft tissue injury to the thoracic spine and the sternum fracture were caused by the accident but had resolved and did not result in permanent impairment. He found the stomach-gastrointestinal injury was not caused by the accident.
The following injuries were referred to Medical Assessor Truskett:[2]
· neck – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine - soft tissue injury;
· sternum – fracture, and
· stomach – gastrointestinal.
[2] AD1 p 4.
Medical Assessor Truskett reported Mr Youssef had pain in his neck all the time which radiates down his left arm to his middle three fingers five to six times per week which Medical Assessor Truskett stated could be considered C7 distribution.
He reported the pain in the thoracic spine had completely resolved.
Medical Assessor Truskett reported pain in the lower lumbar region was episodic and occurs once or twice a week and lasts for 30 minutes at a score of 6/10. He reported the onset was spontaneous but also with activity. He also reported pain radiating down the left leg to the top of the foot at the front which commenced seven months earlier and was quite painful.
Mr Youssef reported he experienced some discomfort in his sternum in cold weather.
In relation to his stomach Mr Youssef reported he started to experience acid reflux two and half years after the accident. He described a retrosternal burning sensation. He reported he had no trouble swallowing and no nausea but will vomit once every two months. He opens his bowels three times per day but may need to go quickly.
Medical Assessor Truskett noted the gastrointestinal symptoms occurred some two and a half years after the accident, there had been no investigation of the complaints and they were symptomatic only. He noted Mr Youssef takes Pariet intermittently for them. Medical Assessor Truskett concluded there was a significant temporal separation between the onset of the gastrointestinal symptoms and the injury, and causation was considered unlikely. He found there was no stomach - gastrointestinal injury caused by the accident.
Medical Assessor Truskett also found there was no convincing radiological abnormality to explain the pain which radiates down the left arm and left leg. He stated the description of the left lower limb was non-radicular and the description of the right upper limb was variable, stating the description provided was different to that described by Dr Bentivoglio.
Medical Assessor Truskett stated although mild radiculopathy was suggested by the EMG studies, they were insufficient to make a diagnosis of radiculopathy in the absence of reproducible clinical signs and imaging abnormality.
Medical Assessor Truskett concluded Mr Youssef had sustained soft tissue injuries to the neck, thoracic spine, lumbar spine and a sternal fracture caused by the accident. He found that the sternal fracture and the thoracic spine soft tissue injury had resolved.
Medical Assessor Truskett found a 0% WPI for the injury to both the cervical spine and the lumbar spine on the basis there was no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.
The present application is a review of the medical assessment conducted by Medical Assessor Philip Truskett pursuant to s 7.26 of the MAI Act.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Truskett was lodged by Mr Youssef on 7 July 2022 within 28 days of the date on which the certificate of Medical Assessor Truskett was made available to the parties.[3]
[3] Section 7.26(1)(b) of the MAI Act.
On 2 August 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26 of the MAI Act, AD2 p 6.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Clause 14F of Schedule 1 of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
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[5]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[6] The Guidelines are issued pursuant to s 10.2 of the MAI Act and are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (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.[7]
[6] Section 7.21(1) of the MAI Act.
[7] Clause 6.2 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[8].
[8] 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.[9]
[9] 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 5 August 2022 (the first Direction) requiring 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 marked AD2 paginated from pages 1 to 349. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 264.
On 27 September 2022 the Panel agreed an examination was necessary.
On 27 September 2022 the Panel issued a report to the parties which included the following direction:
“The claimant is, by close of business 18 October 2022, to provide the following:
(a) clinical notes of any treating practitioners consulted by the claimant in the 12 months preceding the accident; and
(b) a report or records of Dr Tady Kordian, gastroenterologist to whom the claimant was referred on 23 December 2020 or of any other gastroenterologist consulted by the claimant for treatment.”
On 31 October 2022 Ms Pershad on behalf of the claimant uploaded the following message to the portal:
“Firstly, I would like to personally apologise for no response provided by the claimant, I was on leave and have just returned.
1. The clinical notes of the A2Z medical Centre have already been provided on the portal.
2. The clinical notes of Dr Kordian were requested on 28 September 2022 however are not yet available to the claimant.
We request that a further four weeks to be given to the claimant in order to ascertain the notes of Dr Kordian.”
On 31 October 2022 the Panel uploaded the following message in the portal:
“The Panel refers to the message from Anita Pershad on behalf of the claimant. Adopting the numbering used by Ms Pershad:
1. The Panel agrees the clinical notes of A2Z Medical Centre have been provided and were included in the claimant’s bundle. Those records commence on 27 November 2018 following the accident. The Panel seeks access to the records of any treating practitioners consulted by the claimant in the 12 months preceding the accident.
2. Noted.
The Panel extends the time for compliance with the Directions made on 27 September 2022 to 25 November 2022.”
On 24 November 2022 Harrow Legal on behalf of the claimant uploaded the following message to the portal:
“Please find enclosed NIB Claim Statement.
We are advised by the claimant no other doctors was seen.”
The Panel responded as follows:
“The Panel notes the message from the Panel dated 23 November 2022 indicating no other doctors have been seen.
The Panel notes the claimant has not provided a copy of the clinical notes of Dr Tady Kordian or any records of treating practitioners in the 12 months preceding the accident.
The Panel proposes to determine the dispute and issue a Certificate and Reasons for Decision.”
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 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.
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.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
EVIDENCE BEFORE THE REVIEW PANEL
Photographs of the claimant’s vehicle show major damage to the front of the vehicle and the front passenger side of the vehicle.[10]
[10] AD2 p 3.
The Application for personal injury benefits dated 29 November 2018 lists the injuries as sternal fracture, neck pain, back pain and shock.[11]
[11] AD2 p 7.
The claimant was 30 years of age at the date of accident and is now 34 years of age.
The ambulance report noted the airbags had deployed.[12] The claimant reported central chest pain, nil headache, nil cervical pain and nil pelvic pain.
[12] AD1 p 27.
Mr Youssef presented to Bankstown Hospital following the accident on 21 November 2018 with chest pain.[13] An X-ray disclosed a “comminuted sternal fracture involving the upper sternal body with some depression of the anterior cortex”.[14] He was admitted overnight for cardiac monitoring.
[13] AD2 pp 33, 54 and 78.
[14] AD2 p 32.
Clinical notes of A2Z Medical Centre commence on 27 November 2018 when the claimant consulted Dr Arnaout, general practitioner (GP) and reported chest pain and muscle pain. The reason for contact was sternal fracture.[15] The Certificate of capacity/certificate of fitness issued by Dr Arnaout on 21 November 2019 contains a diagnosis of “sternal fracture, neck pain, back pain”.[16]
[15] AD2 p 286.
[16] AD2 p 11.
On 28 November 2018 Dr Arnaout reported “pt has chest pain s/p sternal fracture, has neck pain and back pain, his colour is very pale, he is anxious and feels depressed”.[17] On 10 December 2018 Dr Arnaout referred the claimant for an X-ray of the cervical, thoracic and lumbar spine and referred the claimant for physiotherapy.
[17] AD2 p 285.
Mr Youssef saw Michail Salnikov, physiotherapist on 12 December 2018 whose treatment plan was to reduce neck and shoulder pain, to improve range of movement and to stretch the neck and shoulder muscles.
On 18 December 2018 Dr Arnaout diagnosed post-traumatic stress disorder. On 7 January 2019 Dr Arnaout reported complaints of chest, neck, back and right shoulder pain.
Mr Youssef saw Dr Alsayed, GP for the first time on 12 April 2019 when he reported neck pain, gross restriction in movement, and stiffness. He reported multiple myofascial trigger points and a normal neurological examination. He also recorded complaints of back pain with stiffness and limited movements, referred pain to the lower limbs with numbness and a limited response to pain killers. He diagnosed “neck pain with radiculopathy, back pain, buttock, adjustment disorder, chest pain, depression, sternum fracture”.[18]
[18] AD2 p 277.
On 19 April 2019 Dr Alsayed referred Mr Youssef to Dr Guirgis, orthopaedic surgeon.[19] He also reported persistent aches or pains, headaches, cramps or digestive problems that do not ease even with treatment. Thereafter, Mr Youssef has continued to consult Dr Alsayed on a regular basis in respect of both physical and psychological complaints referrable to the accident. He has been taking Lyrica and pain killers.
[19] AD2 p 273.
In a report dated 7 May 2019 Medhat Metry, psychologist reported Mr Youssef was suffering from an adjustment disorder with anxiety and depressed mood.[20]
[20] AD2 p 326.
On 23 December 2020 the claimant reported, inter alia, heartburn described as a burning feeling in the lower chest and upper abdomen, nausea, pain in the upper abdomen and chest, acid taste in mouth, bloating and belching and a cough, especially at night.[21] Dr Alsayed diagnosed gastro-oesophageal reflux disorder (GORD). He referred the claimant to Dr Tady Kordian in respect of epigastric pain and bloating. In the referral letter Dr Alsayed described the drugs taken by Mr Youssef at that time as:
· Cialis tablet 5mg, 1 tab daily for erectile dysfunction;
· Fluoxetine capsule 20mg, 1 tab daily prn for depression;
· Lyrica capsule 75mg, 1 b.d. m.d.u, and
· Pariet EC Tablet 20mg, 1 tab daily a.c. for gastro-oesophageal efflux disorder.
Prescriptions
[21] AD2 p 210.
A list showed prescriptions issued between 10 December 2018 and 29 July 2022 including Panadol, Brufen, Topiramate capsule, Lovan, and Panadeine Forte.[22]
[22] AD2 p 313.
Dr Guirgis, orthopaedic surgeon
Mr Youssef was referred to Dr Medhat Guirgis who he saw for the first time on 20 August 2019. In a report dated 1 December 2020 Dr Guirgis reported the following ongoing complaints:
· neck pain and stiffness;
· tingling, numbness, and pins and needles in the palm of his left hand and middle three fingers;
· lower back pain and stiffness;
· attacks of loss of feeling in the left foot and also of losing control of his left ankle, and
· episodic ache felt in the anterior chest wall following the healing of a fracture of the sternum.
In respect of the cervical spine Dr Guirgis noted the left brachioradialis reflex was sluggish; and there were signs of irritability of the left median nerve in the carpal tunnel including positive Tinel's sign and Phalen’s test; sensory blunting in the left C6 territory in the left hand; and Grade V minus weakness in the median nerve innervated left thenar muscles. He assessed a 15% WPI.
In respect of the thoracic spine Dr Guirgis found tenderness over the T6-12 spines and relevant spaces with some restriction of movement. He assessed a 0% WPI.
In respect of the lumbar spine Dr Guirgis noted:
1.“straight leg raising was positive on the right side at 80 and on the left side at 60. Tension signs were positive on the left side. On the left side there was Grade IV weakness of the extensor hallucis longus (big toe extensor) and the extensor digitorum (heel walk). There was blunting of sensation in the left L5 nerve root territory in the lower left leg, ankle, and foot. The reflexes were normal”.
He assessed a 9% WPI after deducting 1% due to a pre-existing condition.
Dr Guirgis provided a further report dated 11 March 2021.[23] He commented:
3.“Dr Bentivoglio did not have the benefit of seeing the recent CT studies for his cervical spine showing evidence of mild to moderate posterior discovertebral disease measuring up to 2 mm in diameter which moderately compresses the ventral surface of the thecal sac at the C5-6 level”.
[23] AD2 p 37
In a report dated 12 August 2021 to Dr Alsayed, Dr Guirgis provided the following opinion as to diagnosis:
“• an injury to the cervical area of the spine in the form of musculo-ligamentous sprain/strain with C5-6 intervertebral disc involvement;
· an injury to the thoracic area of the spine in the form of musculo-ligamentous sprain/strain with possible intervertebral disc involvement;
· an injury to the lumbar area of the spine in the form of musculo-ligamentous sprain/strain with L3-4 and L4-5 intervertebral disc involvement; and
· the complaints of tingling, numbness and pins & needles in the palm of his left hand and middle 3 fingers started from the day of the road traffic accident. There were symptoms and signs of left carpal tunnel syndrome”.[24]
Medico-legal reports
[24] AD2 p 170.
Dr Bentivoglio, orthopaedic surgeon
Dr Bentivoglio reviewed the claimant for the insurer and provided a report dated 21 December 2020.[25]
[25] AD1 p 15.
The claimant reported constant neck pain radiating down his left upper limb extending to involve his thumb, index and little fingers of his left hand. He also experienced numbness and pins-and-needles in those fingers. Dr Bentivoglio reported he had noticed a degree of weakness involving the left upper limb. He also reported intermittent low back pain, pain radiating down his left lower limb to the foot which was worsened by sitting and standing for prolonged periods.
Dr Bentivoglio assessed a DRE category 1 impairment of the lumbar spine with a 0% WPI noting the presence of a normal MRI scan, normal nerve conduction studies, no significant clinical findings, no muscle guarding or history of muscle guarding, no documentable neurological impairment, no significant loss of structural integrity on X-rays and no indication of impairment.
In relation to the cervical spine Dr Bentivoglio assessed a 5% WPI consistent with the nerve conduction studies which indicated a minor C6/7 radiculopathy and the physical examination findings. He stated he was unsure why the nerve conduction studies showed an abnormality when the MRI scan of the C5/6 and C6/7 levels did not.
Dr Bentivoglio provided a supplementary report dated 28 April 2021.[26] The only investigation he had not already reviewed was the CT scan of the cervical and lumbar spine of 8 April 2019. Dr Bentivoglio commented that CT scans are not the most accurate way of assessing disc and nerve pathology and did not believe the CT scan of 28 April 2021 showed any new abnormality. The opinion expressed in his earlier report remained unchanged.
SUBMISSIONS
[26] AD1 p 22.
Claimant’s submissions
The claimant provided undated submissions addressing the issue to be determined by the Delegate, that is, whether the assessment of Medical Assessor Truskett was incorrect in a material respect.
Insurer’s submissions
The insurer provided undated submissions addressing the issue to be determined by the Delegate, that is, whether the assessment of Medical Assessor Truskett was incorrect in a material respect.
THE MEDICAL EXAMINATION
Mr Youssef was assessed by Medical Assessor Oates on 11 October 2022 at Sydney. An Arabic interpreter, Hafez Assoum (NAATI No. 35338) was present for the duration of the assessment.
Pre-accident medical history and relevant personal details
Mr Youssef came to Australia from Lebanon at the end of 2017. In Lebanon, he had completed a Bachelor of Computer Engineering and Information Technology, and he worked in website design and development and networking.
When he arrived in Australia, he studied English but was unable to find a job in his field because of a lack of local experience.
He has had no previous problems with his neck and back and no subsequent injury or condition. His general health has been good, he did not take regular medications, has had no serious illnesses and no operations in the past.
He smokes 12 cigarettes a day and does not drink alcohol.
History of the accident
Mr Youssef states he is right hand dominant.
He said on 21 November 2018 at about 5.35am, he was the left rear seat passenger in a two-door coupe type sedan, with a colleague as driver. They were on their way to pick up a supervisor who would occupy the front passenger seat. They were on Miller Road in Chester Hill. He was not fully aware of surroundings, as he was using his mobile phone for a WhatsApp call to his mother in Lebanon at the time.
The vehicle he was travelling in apparently collided with a parked semi-trailer which had been parked on the left side of the road. He had a seatbelt on. He looked up to see dust inside the car and was dazed and bewildered. He is unsure whether the airbags deployed. He was in pain in the front of his chest, from the middle of his body up to his throat. He was not bleeding.
He tried to push the front seat forward so that he could get out through the passenger door, but he had no strength. He also found it awkward, as he had large work boots on, and the space was limited. A bystander helped him extricate through the passenger door.
The accident occurred near his home and a neighbour of his recognised him and called his brother, who arrived on the scene. He had been staying with his brother at Chester Hill since he had arrived in Australia. He continued to stay with his brother for about eight months after the accident.
Ambulance and police attended, and he was taken to Bankstown Hospital. The ambulance notes say no headache, no cervical spine pain, but central chest pain increased on palpation. The Bankstown Hospital records state that ‘translation was aided by a co-worker in attendance. Airbag struck central chest.’ I asked the claimant if this were true, and he replied that he can’t recall if he was struck by an airbag. CT scan showed comminuted fracture of upper sternal body and normal aortogram. He had two days in the Coronary Care Unit for monitoring. He then saw Dr Alsayed, a couple of days later.
Mr Youssef woke up the day after the accident with back and neck pain, and he couldn’t sleep or turn over in bed. Dr Alsayed organised physiotherapy, which was mainly to the neck and back and continued for about 12 months.
He also saw a cardiologist, Dr Almafragy on 4 July 2019. He reassured Mr Youssef that there was no cardiac condition present, and the chest pain was related to the sternal injury.
He was referred to Dr Guirgis whom he saw on 20 August 2019. He ordered an EMG nerve conduction study of the upper and lower extremity, and the results were consistent with minor left C6/7 radiculopathy.
Mr Youssef said he had first noticed the gradual onset of numbness in the left thumb, index and middle fingers and occasionally the whole hand, two or three months after the accident. He also developed symptoms of sciatica in the left lower extremity to the foot. He was not able to say which toes of the foot were involved.
Dr Guirgis told him to continue medications, physiotherapy, and exercises, and if he were no better, he may need to have surgical decompression of the cervical spine. Mr Youssef could not afford to attend Dr Guirgis further, as the insurer cut off medical coverage.
Mr Youssef continued medications including Brufen, Baclofen, Topiramate, Panadol, Lovan and Panadeine Forte. He started Lyrica (Pregabalin) from August 2020 for neuropathic symptoms, but it did not help much.
Mr Youssef said he developed acid reflux a few weeks before he reported the symptoms to his GP on 23 December 2020. He was given Pariet to take as required for a few days at a time. He found this was of benefit and he would not need any for 10 days or so thereafter. He was advised to have an endoscopy but could not afford it because he didn’t have a Medicare card. He did not report any bowel disturbance to the doctor, he told me he just plans to be near a toilet when he might need one.
Mr Youssef was continuing studies at the time of the accident and was going to work for the first day of a job as a construction worker. On a student visa, he is allowed to work 20 hours per week. He did not take up the construction job and after the accident, in the end of year exams, he passed two of his subjects and failed one subject.
When the next trimester started in mid-February 2019, Mr Youssef got permission to do one subject per trimester. He is doing a course in Global Project Management and has three or four subjects to complete through Torrens University.
About one year after the accident, when he was gradually improving, he started some kitchen hand/food preparation work two hours per day which increased progressively to 20 hours per week after a few months. He stopped this work about 10 months ago.
Mr Youssef looked for work until he found a job as a mobile crane operator at a zinc factory about two months ago, where he works 40 hours a week, as the restrictions on employment for student visa holders have been relaxed.
Since the accident, Mr Youssef says he has had trouble getting a deep breath in and developed acid reflux into the throat and has urgency of defecation.
Mr Youssef lives in an apartment with his auntie. Before the accident he did social soccer, swimming and fishing and attended the gymnasium three or four times a week. He doesn’t do these things now. His aunt does the housework. There is no yard work to do.
CURRENT SYMPTOMS
Mr Youssef has intermittent low back pain. He has numbness and weakness in the left lower neck area, present most of the time. The neck pain is present more often than the back. The neck is sore on rapid movement of the head or when flexed forward for prolonged screen usage. He can walk for 45 minutes limited by low back pain and sit for 40-45 minutes limited by low back pain.
He had been scared to learn to drive in Australia after the accident but started driving on L plates last month. He has an international driver’s licence which he used when he lived overseas, but it has expired.
Mr Youssef says his sleep is disturbed by both his mind racing and bodily discomfort. He was treated for insomnia with Topamax, this was changed to Lovan, which he finds more effective.
He gets intermittent gastric reflux.
He says he has no other symptoms at present including no complaint about the thoracic spine.
Mr Youssef was consistent in his presentation.
Current treatment
Mr Youssef remains under the care of Dr Alsayed. He takes Pariet when required and last took this about 10 days ago and averages about twice per month. He has Brufen 400mg twice daily for three days at a time, then will miss a day or so. He has Lovan at night to help sleep. He has Lyrica 75mg on an as needs basis about three times a week. His GP told him to reduce his cigarette intake to help the acid reflux symptoms, but he was not able to do so. He does not vape.
Investigations
From the file:
20 December 2018 – X-ray spine – cervical alignment maintained and disc heights maintained. Thoracic spine normal. Lumbar spine normal apart from transition of lumbosacral segment.
8 April 2019 – CT cervical and lumbar spine – no fracture in the neck. Mild C5 on C6 retrolisthesis of 0.2cm. No evidence of degenerative disc disease in cervical spine. No evidence of degenerative disc disease in lumbar spine. There is a transitional L5 vertebra which represents a normal anatomical variant. Grade 1 retrolisthesis of L1 on L2, L2 on L3, and L3 on L4 of up to 0.4cm. Mild to moderate spinal stenosis at L3/4 caused by a combination of moderate-sized posterior disc bulge, mild bilateral hypertrophic degenerative facet disease, and mild to moderate ligamentum flavum hypertrophy with congenitally short pedicles. There is only minimal bilateral neuroforaminal narrowing. There is moderate-sized posterior L4/5 disc bulge up to 0.4cm in diameter with mild bilateral hypertrophic degenerative facet disease and mild to moderate bilateral ligamentum flavum hypertrophy. There is no spinal stenosis or foraminal narrowing. At L5/S1, there is no spinal stenosis or neuroforaminal narrowing.
17 April 2019 – MRI lumbar spine – alignment is normal. There is no vertebral body compression fracture or other fracture or bone bruise. Mild disc space narrowing and desiccation at L4/5 level. Developmental narrowing of L5/S1 disc with partial sacralisation of the L5 segment. The lower thoracic cord conus and cauda equina are all normal. There is no annular fissure, disc bulge or disc protrusion. There is no central canal, lateral recess or foraminal stenosis.
18 April 2019 – MRI cervical spine – clinical history of neck pain radiating to upper limbs post car accident ? disc prolapse – no pre-cervical soft tissue swelling. Alignment is normal. Normal hydration of discs. Mild C4/5 disc space narrowing. Cervical cord and cranio-cervical junction are normal. No annular tear, diffuse disc bulge or disc protrusion. No canal or foraminal stenosis.
3 December 2019 – EMG nerve conduction studies – the EMG shows minor neurogenic changes in the muscles sampled supplied by left L5 root, however there is no evidence of a significant lumbar radiculopathy. The nerve conduction study is within normal limits. There is no evidence of a peripheral nerve entrapment or a generalised neuropathy.
7 July 2020 – EMG nerve conduction study – upper extremities – the upper limb nerve conduction studies are within normal limits with no evidence of median or ulnar nerve dysfunction. The EMG shows neurogenic changes in the muscles sampled, consistent with a minor left C67 radiculopathy.
20 July 2020 – X-ray chest, sternum and right ribs – clinical history of pain at central chest post-accident and sternal fracture – normal X-ray of chest, sternum and right rib cage.
9 March 2021 – CT scan cervical spine – the report concluded the scan was essentially normal but also reported mild to moderate posterior discovertebral disease measuring up to 2mm in diameter which moderately compresses the ventral surface of the thecal sac. There is mild right-sided neuroforaminal narrowing.
9 March 2021 – CT scan of the lumbar spine – there is grade 1 retrolisthesis of L1 on L2, L2 on L3, L3 on L4 and L5 of up to 4 mm. There is minimal levoconvex scoliosis of the cervical spine associated with a Cobb’s angle measurement of approximately 4 degrees.
L2-L3: there is mild to moderate spinal stenosis caused by a combination of mild posterior discovertebral disease measuring up to 3mm in diameter, mild bilateral hypertrophic degenerative facet disease, moderate posterior epidural lipomatosis and congenitally short pedicles at this level. There is mild left-sided neuroforaminal narrowing. There is no right-sided neuroforaminal narrowing. L3-L4: there is mild to moderate spinal stenosis caused by a combination of moderate posterior discovertebral disease measuring up to 4mm in diameter, mild bilateral hypertrophic degenerative facet disease, mild bilateral ligamentum flavum hypertrophy, moderate posterior epidural lipomatosis and congenitally short pedicles at this level. There is mild right-sided neuroforaminal narrowing. There is no left-sided neuroforaminal narrowing. L4-L5: there is moderate to marked posterior discovertebral disease measuring up to 4mm in diameter. There is mild to moderate bilateral hypertrophic degenerative facet disease. There is mild to moderate bilateral ligamentum flavum hypertrophy. There is mild left-sided neuroforaminal narrowing. There is no right-sided neuroforaminal narrowing. L5-S1: there is no spinal stenosis or neuroforaminal narrowing. There is mild degenerative facet disease. The visualised S1 and S2 nerve roots are normal. Both sacroiliac joints are normal.
EXAMINATION FINDINGS
He was of muscular build with height 182cm and weight 77.6kg. He said that he now attends the gymnasium three to four times per week.
Chest expansion was measured at 90-93.5cm. There is no sternal or rib tenderness.
He stood erect and walked without a limp. He sat comfortably. He could undress and redress without difficulty and transfer freely.
Lumbar spine
Lordosis was preserved. Flexion and extension were both three-quarters of normal range. Lateral flexion was full bilaterally. Thoracic rotation was full bilaterally. No dysmetria was present. There were no non-verifiable radicular complaints. He could squat fully but complained of difficulty with heel and toe walking on the left side. Reflexes were symmetrical. Plantar responses were both flexor. Power and sensation in the lower limbs were normal. Hence, there is no radiculopathy.
Supine straight leg raising; right 80° with negative stretch, left 60° with complaint of burning sensation in left hamstring. Thigh girth: right equals left equals 42cm measured at 10cm above the superior patellar pole. Leg girth: right 33cm, left 34cm measured at maximal circumference. There was no muscle spasm or guarding. There was tenderness at L5/S1 centrally.
Cervical spine
There was normal contour. Flexion and extension were three-quarters of normal range. Lateral flexion was two-thirds of normal bilaterally. Rotation was three-quarters of normal range bilaterally. There was no muscle spasm or guarding. There was tenderness in the upper cervical spine centrally. Reflexes and power in the upper limbs were normal. No dysmetria was present. There were no non-verifiable radicular complaints.
Sensation was intact in both upper limbs except in the lateral left forearm and hand in a C6 distribution. Upper arm girth: right 36cm, left 35cm measured at 10cm above the elbow crease. Forearm girth: right 29cm, left 28cm measured at 5cm below the elbow crease. There are insufficient criteria present to diagnose cervical radiculopathy.
Right and left shoulders
There was full range of movement in flexion, extension, abduction, adduction, external and internal rotation of the right shoulder.
There was full range of movement in flexion, extension, abduction, adduction, external and internal rotation of the left shoulder.
Abdomen
The abdomen was soft. There was some tenderness in the lower central area and left lower quadrant. Percussion note was normal. Bowel sounds were normal to auscultation. There was no liver, spleen or kidney enlargement palpable. There was no anaemia, jaundice or cyanosis and no lymph node enlargement.
DETERMINATION
Causation
Cervical spine – soft tissue injury
The Panel finds the accident was a cause of this injury, noting the report of neck pain to the GP on 27 November 2018, the inclusion of neck injury in the Application for personal injury benefits, and the consistency of complaint to treatment providers thereafter.
Thoracic spine – soft tissue injury
The Panel finds the accident was a cause of this injury, noting the early report of complaints in the thoracic spine and the referral for an X-ray of the thoracic spine on 10 December 2018.
Lumbar spine – soft tissue injury
The Panel finds the accident was a cause of this injury, noting the early report of back pain to the GP, the inclusion of back injury in the application for personal injury benefits, the referral for an X-ray of the lumbar spine on 10 December 2018 and the consistency of complaint thereafter.
Sternum – fracture
The Panel finds the accident was a cause of this injury, having regard to the contemporaneous records including the ambulance and hospital records and the X-ray of 21 November 2018.
Stomach – gastrointestinal
The accident was not a cause of this injury. Mr Youssef was consuming anti-inflammatories and codeine following the accident for approximately two years before the onset of symptoms, which was shortly before he made a complaint to the GP on 23 December 2020. He was treated with an anti-reflux agent, to be taken on an ‘as needs’ basis, and he was told to try and reduce cigarettes which presumably, the GP suspected was the culprit.
He reduced his intake of ibuprofen but was not told to cease this medication, hence it would seem that the GP did not consider that medication ingestion was a factor in production of the gastrointestinal symptoms.
Despite continued ingestion of anti-inflammatory, he reports needing to take an anti-reflux agent only about twice a month currently.
The lack of a temporal nexus between the ingestion of anti-inflammatory medication for injuries sustained in the accident and the onset of gastrointestinal symptoms does not suggest a causal relationship between the accident and the referred gastrointestinal injury.
ASSESSMENT OF IMPAIRMENT
The clinical differentiators present for the cervical and lumbar spines, viz., symptoms but no guarding, no dysmetria, no non verifiable radicular complaints, and no radiculopathy place him in DRE category I for both spinal regions.
The thoracic spine is no longer symptomatic and has resolved.
The rib cage and sternal area is intermittently symptomatic, however healed uncomplicated sternal fractures do not attract assessable permanent impairment under the Motor Accident Guidelines.
There is no permanent impairment for the referred gastrointestinal injury as it was found not causally related to the accident.
The assessment of WPI is as set out in the following table:
Body Part or System AMA Guides/ The Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Cervical spine AMA4, Chapter 3, Table 73,
page 110
DRE IYes 0 0 0 2 Lumbar spine AMA4, Chapter 3, Table 72,
page 110
DRE IYes 0 0 0
The Panel finds the accident was a cause of the following injuries:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· sternum – fracture.
The Panel finds the following injury was not caused by the accident:
· stomach – gastrointestinal.
The Panel finds the following injuries give rise to a WPI of 0%:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
0
0
0