Zaiter v Lawrence and Hanson Group Pty Ltd
[2023] NSWPICMP 72
•3 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Zaiter v Lawrence and Hanson Group Pty Ltd [2023] NSWPICMP 72 |
| CLAIMANT: | Anthony Zaiter |
| INSURER: | Lawrence & Hanson Group Pty Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 3 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 8 May 2017 when an unsecured cabinet fell from a forklift striking the claimant causing him to fall to the ground; the dispute related to the assessment of permanent impairment under of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Panel not satisfied that the motor accident caused any fractures in the thoracic spine because the initial complaints of tenderness were in the upper thoracic spine around T3; the scans show degenerative changes rather than acute fractures and the accident would result in compression fractures; claimant assessed at 5% in the cervical spine for dysmetria and 1% for haemorrhoids due to medication; Held – claimant assessed at 6% permanent impairment; original assessments revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Cameron dated 17 July 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%: · cervical spine; · thoracic spine; · lumbar spine; · head, and · lower digestive/anus. |
REASONS
BACKGROUND
Mr Zaiter (the claimant) was injured on 8 May 2017 when an unsecured cabinet fell from a forklift striking the claimant causing him to fall to the ground (the motor accident). Mr Zaiter alleges that the motor accident caused several injuries.
Lawrence & Hanson Group Pty Ltd employed the driver of the forklift and is liable to pay Mr Zaiter any damages under the Motor Accidents Compensation Act 1999 (the MAC Act). Whilst not entirely accurate, it is convenient to refer to Lawrence & Hanson Group Pty Ltd as the insurer.
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Mr Zaiter claims that he suffered impairment of his cervical, thoracic and lumbar spine and a small haemorrhage in the brain.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The medical assessment was issued by Medical Assessor Cameron on 17 July 2022. The Medical Assessor found that the motor accident caused a soft tissue injury to the neck, thoracic and lumbar spine which did not rate assessable impairment. The head injury did not involve any recorded abnormality in the Glasgow Coma Score (GCS) with no post traumatic amnesia or brain imaging abnormalities. The criteria for assessment were not established.
The Medical Assessor otherwise assessed 1% impairment for the lower digestive tract/haemorrhoids.
REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that 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.[5]
[5] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective bundles.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“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.”The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see
s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction.
Pre-accident material
The pre-accident material such as hospital admissions concern unrelated medical conditions. The psychological evidence refers to a pre-existing cannabis use disorder.
Post-accident material
Ambulance records
The ambulance report is in the following terms:[12]
“O/A supine in driveway. Per Pt he was standing near Ute when the box approx. 2M high and 50cmx50cm weighing approx 150kg slid off the forklift whilst loading onto the Ute, so it hit his L side and knocked him to the ground landing on his R side. Pt denies any LOC, box fell away so he was not trapped. Pt C/O cervical neck pain and headache. Nil motor or sensory deficits, Pt able to move all limbs freely, Pt states slight tenderness to L shoulder also. Nil other obvious pains or injuries. Pt denies nausea or any visual disturbance. Abdo soft and non-tender. Pt declined offers of pain relief.”
[12] Claimant’s bundle, p 282.
The GCS was recorded as 15 at both 7.30am and 8.00am.[13]
Hospital records
[13] Claimant’s bundle, p 283.
The discharge summary dated 9 May 2017 from the Department of Neurosurgery, Westmead Hospital, referred to a small haemorrhage in the right side of the 4th ventricle. The C5/6 disc bulge and anterior wedge at T7/8 were described as “incidental findings – old injuries”.[14]
[14] Claimant’s bundle, p 155.
In a subsequent report dated 24 July 2017, Dr Prashanth Rao, neurosurgeon, described the claimant’s presentation to hospital following the accident in the following terms:[15]
“As you are well aware, Anthony presented to Westmead Hospital Emergency with a 150 kg weight falling onto his head and neck. His CT scans revealed minor wedging in the thoracic spine and I reviewed him in the Outpatient Clinic. At that point of time, he also was complaining of neck pain, thoracic pain and he was neurologically intact. In order to further investigate his neck and the shoulder pain, I organised an MRI scan of the cervical, thoracic and lumbar spine.”
[15] Claimant’s bundle, p 150.
The clinical history for the CT scans organised on 8 May 2017 was:[16]
“Struck by cabinet which fell off forklift head strike L side, L shoulder, ? neck/back fell to ground, denies headstrike/LOC ongoing headache, brief L hand paraesthesia reporting C-spine tenderness C4-6, T2-3 tenderness CTB + C-spine + T spine please for assessment of ?intracranial pathology, to clear C+T spine moving all 4 limbs”
[16] Claimant’s bundle, p 270.
The GCS was recorded at hospital at 15. Other clinical notes refer to normal neurological examination of upper and lower limbs and tenderness in the cervical spine and at T3.[17] Trauma admission notes consistently refer to tenderness at C4-C6 and T2/3.[18]
[17] Claimant’s bundle, p 292.
[18] Claimant’s bundle, p 300.
Police report
The police report version of the accident is as follows:[19]
“At the above date and time the VIC was at the LOC to pick up a delivery. The P/N was operating a forklift to move the item onto the back of the VIC ute. As the P/N was lifting the item it became unstable and fell from the forklift colliding with the VIC head and causing him to fall to the ground.”
[19] Claimant’s bundle, p 32.
Radiology
A CT scan of the cervical spine dated 8 May 2017 showed right disc bulge at C6/7 causing mild to moderate canal stenosis.[20] The CT scan of the head showed a 3 mm lesion in the right lateral aspect of the fourth ventricle. The CT scan of the chest showed mild anterior wedging of T7 and moderate anterior wedging at T8.[21]
[20] Claimant’s bundle, p 436.
[21] Claimant’s bundle, p 436.
The MRI brain scan dated 24 May 2017[22] was a follow-up of the small 3 mm ventricular haemorrhage. The scan was described as “unremarkable” by the radiologist with no evidence of intraventricular or other haemorrhage and no cause for the headaches identified.
[22] Claimant’s bundle, p 158.
The MRI scan of the cervical spine dated 2 June 2017 showed a minor annular bulge at C6/7 causing only minor canal narrowing.[23]
[23] Claimant’s bundle, p 159.
The MRI scan of the lumbar spine dated 6 June 2017 showed minor building at multiple levels with no significant canal narrowing and no definite nerve root compression or impingement. Hyperintensity of the interspinous ligaments at L3/4, L4/5 and L5/S1 suggested acute injury.[24]
[24] Claimant’s bundle, p 160.
The MRI scan of the thoracic spine dated 6 June 2017 showed “no high signal within the vertebral bodies or posterior elements to suggest acute fracture”. There was a minimal focal disc protrusion at T6/7 mildly distorting the anterior aspect of the spinal cord.[25]
[25] Claimant’s bundle, p 161.
The MRI scan of the cervical and thoracic spine dated 27 October 2018 is reported as showing anterior compression fracture of T6, T7, T8 and T9 associated with up to 20% loss of vertebral body, disc protrusions at various levels particularly at T6/7 with mild cord compression.[26]
[26] Claimant’s bundle, p 163.
The MRI scan of the thoracic spine dated 27 April 2019 is reported as showing central disc bulge at T6/7 encroaching on the thecal sac. Anterior wedging is reported at T8 and T9 which the radiologist opined “may be due to Scheuermann’s disease”. [27]
[27] Claimant’s bundle, p 165.
Treating evidence
In a review on 24 July 2017, Dr Rao noted complaints of neck pain radiating to the head and interscapular pain, slowly improving. The claimant was neurologically intact.[28]
[28] Claimant’s bundle, p 150.
Dr Andrew Cree, orthopaedic surgeon, examined the claimant on three occasions in 2019. Initial consultation in February 2019 discussed the cervical and thoracic spine.[29] Dr Cree provided a report dated 23 March 2020.[30] In respect of the cervical and thoracic pathology shown on the scans, the doctor opined:
“MRI scan from October 2018 showed trivial disc protrusion at C5/6 and C6/7. There was evidence of a posterior annulus tear at T6/7 with a diffuse disc bulge and some contact with the thoracic spinal cord. There were similar changes at T7/8. There was also evidence of a compression fracture at T6, T7, T8 and T9 with up to 20% loss of vertebral height and kyphosis. The appearance of the wedge compressions fractures, to my eye, was that they most likely were developmental in nature except for the history of trauma. I was most concerned about the central disc protrusion at T6/7 and that there was effacement of CSF.”
[29] Claimant’s bundle, p 243.
[30] Claimant’s bundle, p 145.
In November 2019 the claimant was reporting interscapular discomfort around the thoracic spine and low-grade neck pain without radiculopathy. Dr Cree opined that the “injury was an acute one related to the workplace injury in 2017” without stating what specific injury was acute.
General practitioner
A certificate from Dr Brown dated 10 May 2017 referred to “brain haemorrhage, disc protrusion C spine”.[31] A further certificate dated 9 June 2017 referred to “cerebral bleed, head injury”.[32]
[31] Claimant’s bundle, p 177.
[32] Claimant’s bundle, p 185.
Dr Brown’s clinical notes dated 10 May 2017 referred to neck pain and headache and a small brain haemorrhage which resolved.[33] The clinical note for 26 May 2017 refers to “pain in mid thoracic area and C-spine area, as well as headache”[34] and the back pain “can radiate to chest”. The doctor noted that the neurosurgeon had requested an MRI scan of the spine.
[33] Claimant’s bundle, p 248.
[34] Claimant’s bundle, p 249.
On 16 June 2017 the general practitioner noted the claimant was working four days a week, “pain free most days” but “still stressed”. No pain relief was required at that time.[35]
[35] Claimant’s bundle, p 250.
On 8 July 2017 the general practitioner recorded that the claimant “had pain on back of neck and upper chest/which is improved now”. Symptoms of anxiety and depression were noted, and the claimant thought he was ready for full duties.[36]
[36] Claimant’s bundle, p 250.
On 16 August 2017 the general practitioner recorded that the claimant was “feeling much improved” and would only get neck pain once every two or three days.[37] Examination of the neck showed full range of motion and no tenderness.
[37] Claimant’s bundle, p 251.
There is an absence of clinical notes between 2 September 2017 and
4 September 2018.[38] The note on 4 September 2018 records:“Ongoing neck pain since injury and May last year
Has been extremely busy with work and family so has not been in but pain has persisted
Discomfort often during the day, esp towards end of day
Awakes often every hour at night with neck pain and has to roll over and find a different position
No arm weakness or numbness
Occipital headaches at times, nil other frontal headaches or nausea etc
O/E tender over C5/C6 centrally.”
[38] Claimant’s bundle, p 252.
A certificate dated 15 May 2019 referred to “head injury, upper back and neck injury with chronic pain and Post traumatic stress disorder”.[39] A certificate from Dr Aboud dated 6 June 2019 specified the same injuries and included “also lower back pain”.[40]
[39] Claimant’s bundle, p 210.
[40] Claimant’s bundle, p 174.
Physiotherapy records
Physiotherapy in October 2019 related to treatment to the cervical and thoracic spine.[41]
[41] Claimant’s bundle, p 170.
Other records
Discharge summary from hospital dated 29 July 2021 referred to a two-week history of constipation with intermittent bleeding likely due to daily intake of Panadeine Forte. [42]
[42] Claimant’s bundle, p 166.
Claim form
The claim form dated 24 July 2019 specified injuries as cerebral haemorrhage bleed, neck disc bulge (C5/6), upper back disc bulge with spinal cord compression (T7/8), whiplash and post-traumatic stress. The claimant marked the affected areas on the claim form as the head, neck and upper back.[43]
[43] Claimant’s bundle, p 17.
Qualified evidence
Dr John Garvey, surgeon, provided a report dated 29 October 2021.[44] The doctor opined that the claimant had developed constipation and rectal bleeding as a result of the Panadeine Forte intake.
[44] Claimant’s bundle, p 33.
Dr Garvey assessed the claimant at 2% impairment for palpable internal haemorrhoids and rectal bleeding. The doctor found no upper digestive system rateable and there was no rateable impairment for constipation.
Dr Neil Berry, surgeon, provided a report dated 15 September 2021.[45] The doctor opined that the claimant has no symptoms relating to the upper digestive tract. He assessed 5% for colonic disease and 5% impairment for the anal region due to intermittent bleeding and constipated stools.
[45] Claimant’s bundle, p 41.
Dr Richa Rastogi, psychiatrist, opined that the claimant suffered from chronic adjustment disorder and a chronic pain disorder with co-morbidities of attention deficit hyperactivity disorder (ADHD) and cannabis abuse.[46]
[46] Claimant’s bundle, p 75.
In 2019 Dr Eugene Gehr, orthopaedic surgeon diagnosed a cervical spine soft tissue injury with dysmetria, thoracic spine fractures and lumbar spine injury with left radiculopathy caused by the motor accident.[47]
[47] Claimant’s bundle, p 113.
In 2020, Dr Robert Breit, orthopaedic surgeon, opined that the claimant did not suffer an acute spinal fracture nor lumbar spine injury. The doctor accepted that the claimant sustained an aggravation of a pre-existing cervical disc lesion noting that the changes were not acute as there were no inflammatory changes present on the MRI scan.
Dr Doron Samuell, psychiatrist, opined that the claimant suffered from an adjustment disorder with mixed disturbance of mood in partial remissions and a cannabis use disorder. The doctor accepted that the adjustment disorder could plausibly be caused by the motor accident with competing causes including the marriage breakdown and legal conflicts. Dr Samuell opined that the cannabis use disorder, if it exists, and the ADHD was pre-existing.[48]
[48] Insurer’s bundle, p 30.
Dr David Maxwell, orthopaedic surgeon, opined that the claimant sustained a sprain of the cervical spine and mild contusion of the left shoulder. The doctor opined that the pathology in the thoracic spine was pre-existing normal variant which was asymptomatic.
Dr Maxwell noted that the symptoms in the thoracic and lumbar spine developed “at a later date” and was a somatic manifestation of his underling anxiety and depression. The doctor opined that the soft tissue injuries to the head, left shoulder and cervical spine had resolved. The doctor opined that the present symptoms were due to the somatic manifestations of the claimant’s anxiety.
Claimant’s statements
Mr Zaiter provided a statement dated 2 September 2020.[49] He described the accident in the following terms:
“The forklift driver carrying his unsecured cabinet lifted the forklift above two metres off the ground. He turned the corner and as he did, the cabinet tipped striking me to the top and left side of my head. I fell to the ground due to the force of being struck, I became disorientated and knocked out momentarily.”
[49] Claimant’s bundle, p 2.
Mr Zaiter said that he suffered pain in his neck, head and “whole back” and was taken by ambulance to Westmead Hospital.
The claimant provided a statement dated 13 November 2020.[50] Mr Zaiter stated that he suffered low back pain at hospital and was referred for an MRI scan. He stated:
“As a consequence of the debilitating pain in my cervical spine and my thoracic spine, my main focus was on the recovery of those particular symptoms. This was the focus of all my treatment as it caused me the most amount of pain. At the time, the pain in my lumbar spine was secondary to the primary pain in my cervical spine and thoracic spine. Over time, the pain continued to intensify in my lower back and as such I sought treatment from my GP.”
[50] Claimant’s bundle, p 1.
SUBMISSIONS
Claimant’s submissions dated 29 July 2022[51]
[51] Claimant’s bundle, p 498.
These submissions sought a review of the Medical Assessment. The claimant noted that the Medical Assessor referred to materials that had not been served by the parties and/or did not relate to the claimant.
The claimant submitted that the Medical Assessor failed to consider relevant documents and arguments pertaining to the thoracic spine fractures including:
(a) an absence of pre-existing symptoms;
(b) trauma suffered in the accident;
(c) complaints of thoracic pain at hospital and following discharge;
(d) the compression fractures shown in the MRI scan of the thoracic spine dated 27 October 2018, and
(e) the observation by Dr Cree in the report dated 23 March 2020 which noted that the wedge compression fractures “most likely were developmental in nature except for the history of trauma”.
The claimant submitted that the Medical Assessor failed to engage with the opinion of Dr Cree and that of the radiologist (October 2018 scan) and failed to properly consider causation.
RE-EXAMINATION
Mr Zaiter was examined on 23 February 2023 by Medical Assessor Oates. The examination report is as follows:
“Mr Zaiter attended and was examined unaccompanied.
He brought with him a large number of imaging films and reports, referred to later.
Pre-accident medical history and relevant personal details
He said he had no history of neck or upper back pain in the past.
On 18 May 2005, he had a motorcycle accident, and he sustained a fracture of the right hand at the 4th and 5th carpometacarpal joints. He underwent an insertion of K-wire to the 5th metacarpal. There was full recovery after subsequent removal of the wire.
In 2003, a forklift ran over his right foot when he was working at a metal foundry, and he had a fracture of the ankle. He was in a plaster cast for two months and made a full recovery and made no workers compensation claim.
He has had episodic low back pain and stiffness after heavy physical exertion every couple of weeks, which arises from the nature of his job as a courier, which often involves bending and heavy lifting, but he had not required any treatment, as the pain would previously settle with overnight rest.
He does not recall any history of thoracic or lumbar backache as an adolescent, the time when Scheuermann’s disease can be symptomatic.
He has been a self-employed courier since 2013, working full-time. He had five weeks off work after the subject accident and then resumed suitable duties. He did try to return to normal duties around August 2017, when he was feeling much improved and only getting neck and upper back pain every few days which didn’t wake him from sleep, however he was not able to cope and had to drop back to suitable duties.
He recently extended his hours from eight hours a day to ten hours a day, because he is struggling financially, but travelling over bumpy roads does increase the neck and upper back pain and low back pain, because his work utility has stiff suspension.
He limits lifting to 10kg and pushing and pulling to 20-30kg, with these restrictions certified by Dr Cree, his treating neurosurgeon.
He was married at the time of the accident but separated 2½ years ago and divorced subsequently. He has not seen his three children aged eight, six and four for the last seven months, but prior to that had partial custody with an overnight say once per week. Custody was withdrawn because of alleged mental health problems.
He shares a granny flat with a male flatmate.
Before the accident, he did power lifting and body building, and he was 116-118kg but now sits at 96kg. His current pastime is going to the gym, swimming and walking. He uses resistance machines at the gym but no free weights.
He can do internal housework but cannot do mowing because pushing the mower back and forwards increases low back pain and upper back pain, so his roommate does it.
He is mostly OK with personal care, but things take longer, particularly if he has pulled a muscle somewhere, which seems to happen more frequently now and he doesn’t know why.
He was a social smoker but hasn’t smoked for about two years and ceased alcohol 2½ years ago after his marital separation. He is Australian born.
In September 2006, he had an episode of pancreatitis after excessive alcohol intake. He has curbed drinking since and has had no recurrence.
History of the motor accident
Mr Zaiter said on 8 May 2017, he was standing at the back of his utility to have a 170kg, 2m tall metal cabinet loaded onto the tray of the ute. The cabinet was sitting on the tines of a forklift, with the tines being at just above his waist height, when the forklift driver turned to the left and the cabinet overbalanced and fell, hitting him on the top of the head and knocking him to the ground. He remembers lying on the ground on his back. The cabinet did not fall on top of him.
He was taken by ambulance to Westmead Hospital and ambulance records indicate complaints of neck pain, left shoulder, and he also recalls upper back pain. He was admitted to Westmead Hospital and remained overnight. Investigations showed a small intracranial bleed with a C5/6 disc bulge and anterior wedging of T7/T8, both of which were thought to likely be old conditions. He was discharged the next day.
He saw his then GP, Dr Phillipa Brown, on 10 May 2017. He attended chiropractic for the upper back and neck, which gave temporary relief but no long-term improvement.
He was off work for five weeks and taking Panadol and Nurofen. These gave inadequate pain relief and he started taking Panadeine Forte.
Thyroid asymmetry was discovered coincidentally and he subsequently had a thyroid biopsy showing a benign lesion.
He had an MRI scan on 2 June 2017, showing a minor annular bulge at C6/7 with no foraminal compromise and no evidence of acute neck injury.
An MRI thoracic on 3 June 2017 showed an early C6/7 disc protrusion with trivial anterior wedging of several lower thoracic vertebrae. The CT scan at the Westmead Hospital had shown no evidence of acute thoracic fracture.
He also received some remedial massages and took up swimming.
He was referred to Dr Cree, neurosurgeon, as he was not improving over time. He first saw him on 20 February 2019 regarding ongoing neck and upper back pain and headaches. He noted a T6/7 disc bulge with some local contact with the cord and wedge compression of T6 to T9, which he considered was most likely developmental. He advised long-term physical restrictions at work because of the disc protrusion and 12-monthly review with an MRI scan to monitor the progress of the disc. He advised swimming and an EP (exercise physiologist) to strengthen the spine and core muscles.
He attended the EP on six occasions in late 2019 and early 2020, and they organised a gym program for him to continue for self-management, which he does.
Specifically, he said he has had low back pain since the accident and says he mentioned it to the GP, but his major pain has always been in the neck and upper back. Whereas he might have had back pain before the accident once every few weeks, since the accident it is noted about once a week.
He found that Panadeine Forte constipates him very soon after having a dose and he will then take a lot of Metamucil to soften his stool, but then gets some diarrhoea. Nevertheless, he still feels that he is incompletely emptying his bowels, so will go back to the toilet and strain. He developed a peri-anal tear and internal haemorrhoids with rectal bleeding at times. On one of these occasions of PR bleeding, he attended Westmead Emergency Department on 29 July 2021 and a rectal examination indicated palpable internal haemorrhoids. He was referred back to the GP who advised suppositories and haemorrhoid cream, and further advised that he should have a colonoscopy, however he did not follow this up because the problem lessened as he reduced the frequency of Panadeine Forte dosage. However, when he does take Panadeine Forte again, he gets constipated soon after.
He last saw Dr Cree in November 2020 and had an update MRI scan thoracic spine on 13 November 2020 showing no worsening of the T6/7 disc bulge.
Dr Cree said he did not need to see him again, as his condition was stable, and he was told to continue the exercises.
At that time, he was also given a request for MRI scan cervical spine and lumbar spine because of his complaint of dribbling of micturition for the previous three days, but Mr Zaiter said he did not have these investigations because this symptom seemed to improve for a while again, but has since come back.
His GP is now Dr Aboud at Merrylands, because Dr Brown has left the practice.
Details of any relevant injuries or conditions sustained since the motor accident
None were reported.
Current symptoms
He gets low back pain about once a week, which radiates from the upper lumbar levels to the tailbone area, but this is more bearable than his other symptoms.
He has daily neck pain, headaches and stiffness on the left side of the neck and upper back pain, and stiffness and discomfort around the left scapular area. These symptoms are worse than the low back pain.
When he wakes up, he cannot turn his head to the left, and he cannot sleep on his left side because of increasing discomfort.
He doesn’t have any pain radiating to the upper limbs or lower limbs.
He has noticed intermittent pins and needles in the thumb and index fingers on both hands for some time but hasn’t told the doctors, as he didn’t think it was related to the accident.
He gets urgency of micturition and dribbling at times. He has had a prostate check, and this was clear. He is able to obtain an erection and ejaculate, but he has not been experiencing a pleasurable sensation of orgasm in recent times.
His memory is getting worse now.
Current and proposed treatment
He goes to the gym and does exercises on the machines, and core exercises 3 – 4 days per week and swims once a week.
He takes Panadeine Forte about once a week for upper back pain, which is usually accompanied by low back pain, and this helps the pain.
He has been having medical marijuana for the last 6 – 7 months, which was prescribed this for pain in the upper back. He was taking the cannabinoid oil at night but is worried about testing positive for the drug when driving at work the next day, so now he vapes marijuana flowers at about 7.30pm, because of their shorter half-life.
Since he reduced Panadeine Forte regular intake, the haemorrhoids have reduced, and he hasn’t had any PR bleeding for quite a while. He does feel lumps just inside the anus when he wipes his backside.
He also takes a protein powder supplement as part of his gymnasium routine.CLINICAL EXAMINATION
Mr Zaiter was right-handed and was strongly built with height 187.5cm and weight 96.9kg.
He sat comfortably but when standing for a period during the examination, he asked to resume his seat. He stood with an early upper to mid thoracic kyphosis. There was no limp.
Cervical spine – Poke-necked contour. Flexion was full, extension three-quarters, lateral flexion full bilaterally, rotation to the right two-thirds of normal and left three-quarters of normal. There was guarding in the left lower paracervical, left upper trapezius muscles, with local tenderness. Reflexes, power and sensation in the upper limbs was normal. Tinel’s sign negative at the ulnar nerves at both elbows and negative over the median nerve in both wrists.
Upper arm girth; right 38cm, left 37cm at 10cm above the elbow crease. Forearm girth; right 32.5cm, left 31cm at 5cm below the elbow crease. Both palms were heavily calloused.
Thoracic spine – There was no guarding or muscle spasm. There was widespread midline tenderness from T4 to T9. Thoracic rotation was three-quarters of normal bilaterally. Sensation was intact over the trunk and the superficial abdominal reflex was present.
Lumbar spine – Lordosis was preserved. Flexion was one-half normal range, extension one-half normal range. Lateral flexion was two-thirds of normal bilaterally. He could squat fully with support and walk on the heels and toes with complaint of some discomfort in the left ankle and foot on heel walking. Axial present test negative. Reflexes normal. Plantar responses both flexor. Power and sensation normal. Supine straight leg raising 70° bilaterally with complaint of low back pain on the left and middle back pain on the right, but negative stretch test. Sitting straight leg raising showed negative slump test bilaterally but complaint of slight pain in the lower back. Thigh girth; right 49cm, left 47.5cm at 10cm above the superior patellar pole. Leg girth; right 40cm, left 37.5cm at 18cm below the inferior patellar pole. No guarding or spasm. Widespread midline lumbar tenderness from L1 to S1.
Abdomen – No cyanosis, oedema or jaundice noted. The abdomen was soft and non-tender to palpation. Bowels sounds were normal. Liver, spleen and kidneys were not palpable on deep inspiration. The hernial orifices were clear. A rectal examination was not performed.
Comments on consistency
Mr Zaiter was pain-focused in his presentation but presented consistently.
REVIEW OF DOCUMENTATION
Summary of relevant radiological and medical imaging and other investigations
The following imaging films, and where noted reports, were brought to this examination.
22 May 2017 – MRI brain/head – Report is in the file of evidence.
2 June 2017 – MRI cervical spine – Report is in the file of evidence.
3 June 2017 – MRI thoracic spine – Report is in the file of evidence. I measured the posterior and anterior heights of thoracic vertebrae as follows: T6 anterior 11mm, posterior 11mm; T7 anterior 11mm, posterior 11mm; T8 posterior 11mm, anterior 9mm; T9 posterior 11mm, anterior 10mm.
3 June 2017 – MRI lumbar spine – Report is on file.
15 September 2018 – CT thoracic and cervical spine – Report is attached – I measured wedging of T8 and T9 posterior 6mm, anterior 5mm; compared with unwedged thoracic vertebrae posterior 6-7mm, anterior 6-7mm.
27 October 2018 – MRI cervical spine and thoracic spine – Report on file. I measured thoracic vertebral body heights as follows: T5 posterior 11mm, anterior 11mm; T6 posterior 11mm, anterior 10mm; T7 posterior 11mm, anterior 10mm; T8 posterior 12mm, anterior 9mm; T9 posterior 12mm, anterior 10mm; T10 posterior 12mm, anterior 11mm; T11 posterior 12mm, anterior 12mm.
16 November 2019 – MRI thoracic spine – No report – Thoracic vertebral measurements as above.
13 November 2020 – MRI thoracic spine – Report is attached.
I agreed with the contents of the reports after perusing the imaging. I noted that some radiologists reported ‘thoracic compression fractures’ and others reported ‘anterior vertebral wedging’ on the same affected vertebrae.
Note:- There was no indication on CT scans done initially, or later MRI scans, of any acute injury changes at the sites of the wedged thoracic vertebrae.DIAGNOSIS
Cervical spine
Soft tissue injury
Thoracic spine
Soft tissue injury including T6/7 minor disc protrusion with early spinal cord abutment but no pressure changes on the cord, and coincidental wedge compression of T7 to T9 vertebrae. There was no indication of thoracic radiculopathy on clinical examination.
Lumbar spine
Soft tissue injury with symmetric loss of active range of motion. There was no evidence of radiculopathy on clinical examination.
Head injury
Closed head injury 4th ventricle right-sided haemorrhage, head haematoma.
Anal/intestinal
Internal haemorrhoids.
CAUSATION
Cervical spine
A cervical spine soft tissue injury was caused by the accident, based on the evidence available.
Thoracic spine
A thoracic spine soft tissue injury (T6/7 mild disc protrusion) was caused by the accident, based on the contemporaneous clinical record. The accident did not cause an acute traumatic compression fracture of any thoracic vertebrae, nor did it aggravate these conditions because the site of maximal tenderness after the accident was above the vertebrae showing anterior wedging on imaging.
There was also no sign of acute fracture in the affected vertebrae on CT scanning at the initial hospital assessment, nor on subsequent MRI scans. There is no report of thoracic radiculopathy being caused by the accident.
Lumbar spine
The accident was a cause of soft tissue injury leading to some claimed increase in frequency of symptoms, which were present intermittently before the accident, but were not deemed by the claimant and his treaters to be significant in the face of the cervical and thoracic conditions.
Head injury
The accident was a cause of this injury, based on the contemporaneous medical records.
Anal/intestine
The accident was a cause of this injury, based on the history obtained and the medical records indicating Panadeine Forte had to be taken for pain because lesser analgesics were ineffective in pain relief, led to constipation with straining at defecation and formation of internal haemorrhoids with intermittent rectal bleeding.PERMANENT IMPAIRMENT
Cervical spine – soft tissue injury
There was guarding and asymmetric loss of active range of motion in rotation and flexion/ extension. There were no non-verifiable radicular complaints and no radiculopathy. The clinical signs present are differentiators for DRE Cervicothoracic Category II giving 5% whole person impairment.
Thoracic spine – soft tissue injury
There was no dysmetria, no non-verifiable radicular complaints, no radiculopathy, and no post-traumatic thoracic vertebral fractures. There are continuing symptoms, which is a differentiator for DRE Thoracolumbar Category I giving 0% whole person impairment.
The late onset intermittent paraesthesia affecting the right and left thumbs and index fingers is not mentioned anywhere in the contemporaneous medical record, and the claimant told me it has not been mentioned to the treating medical personnel, hence this condition has not been diagnosed and cannot be taken into consideration or viewed as non-verifiable radicular complaints.
Lumbar spine – soft tissue injury
There was symmetric loss of active range of motion in the lumbar spine, no non-verifiable radicular complaints, no guarding or spasm and no radiculopathy.
Symptoms are present which is a differentiator for DRE Lumbosacral Category I giving 0% whole person impairment.
Head – soft tissue injury
The Panel agrees with the original Assessor that this injury has resolved, producing no assessable permanent impairment.
Lower digestive system – constipation and haemorrhoids
The Panel agrees with the original Assessor with 1% whole person impairment within the specified range of 0 – 2% in view of the claimant’s intermittent symptoms, noting his haemorrhoids are responsive to treatment and less troublesome when he is able to minimise ingestion of Panadeine Forte.
He has moved to alternative analgesia in the form of medicinal cannabis (non-constipating) to minimise Panadeine Forte intake.
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 Cervical spine – soft tissue injury AMA4, Chapter 3, Table 73, page 110
DRE IIYes 5 0 5 Thoracic spine – soft tissue injury AMA4, Chapter 3, Table 74, page 111
DRE IYes 0 0 0 Lumbar spine – soft tissue injury AMA4, Chapter 3, Table 72, page 110
DRE IYes 0 0 0 Lower digestive system – symptoms and haemorrhoids Section 6.248 Motor Accident Guidelines Yes 1 0 1
Pre-existing/subsequent impairment
Not applicable.
Apportionment
Not applicable.
Effects of treatment
Not applicable.
Conclusion
Degree of permanent impairment caused by the motor accident
6%"
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[52] and Insurance Australia Ltd v Marsh.[53]
[52] [2021] NSWCA 287 at [40], [41] and [45].
[53] [2022] NSWCA 31 at [11], [21], [64].
We adopt the examination findings of the Medical Assessor supplemented by the following further reasons.
Lumbar spine injury
There is no contemporaneous record of complaint in any of the clinical notes following the motor accident. The hospital notes record precise reference to the areas of complaints in the cervical and thoracic spine (such as at T3). Subsequent clinical notes include the areas of tenderness in the spine with precisions.[54] None of these mention the lumbar spine.
[54] See [30] herein.
Dr Rao stated on 24 July 2017[55] that the MRI of the entire spine was undertaken to investigate shoulder and neck complaint, not because of low back problems.
[55] See [29] herein.
There was no medical attendance between September 2017 and September 2018 in circumstances where the claimant is recorded as stating in September 2018 that he was too busy with work and family. In September 2018 the recorded complaint by the general practitioner was of neck pain.
There is no reference in the claim form to a low back injury caused by the motor accident, in the claim form dated 24 July 2019 which specifically refers to an upper back injury. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[56] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[56] [2014] NSWSC 888 (Bugat) at [31]-[32].
However, the claimant advised the Medical Assessor that his frequency of back pain increased following the motor accident from “once every few weeks” to “about once a week”. Whilst the claimant appeared pain focused to the Medical Assessor; he was found to be credible historian.
Further, it is medically plausible that the fall to the ground may aggravate a pre-existing condition.
In these circumstances we accept that the motor accident caused an aggravation of some lumbar spine symptoms which resulted in no assessable impairment.
Thoracic spine
There is contemporaneous complaint of symptoms in the upper thoracic spine at T3.
The wedging seen in T7 and T8 vertebrae are not the result of acute post-traumatic fractures because a fracture would have severe local tenderness, whereas the hospital record indicates tenderness at T3, four spinal segments higher. The CT scan thoracic spine from the hospital stated there were no acute fracture lines seen at T7 and T8. The MRI scan report on 6 June 2017 stated there was some trivial anterior wedging at several lower thoracic vertebrae which appears developmental, that is not the result of trauma. If the vertebrae had been fractured the scan would show signal change indicating evidence of bone bruising and oedema.
An MRI scan dated 28 October 2018 described anterior compression fractures, now at T6-T9 four vertebrae instead of the original two but again no significant bone bruising or oedema. The next MRI scan of the thoracic spine dated 27 April 2019 referred to anterior wedging and only of T8 and T9 and the possible diagnosis of Scheuermann's disease which is a developmental vertebral condition occurring in adolescence which is sometimes symptomatic and may be referred to as "growing pains" but often is asymptomatic. The changes leave permanent changes in the shape of the affected thoracic or lumbar vertebrae, that is wedging, which can then be mis-diagnosed by radiologists as fractures, implying trauma as the aetiology, particularly when they are not given adequate clinical data about the patient being scanned.
The Panel is not satisfied that the motor accident caused any fractures in the thoracic spine following reasons:
(a) the initial complaints of tenderness were in the upper thoracic spine around T3;
(b) the scans show degenerative changes rather than acute fractures, and
(c) the Panel in its medical expertise is not satisfied that the nature of this accident would result in compression fractures.
The claimant referred to Dr Cree’s opinion which we consider equivocal in support of the causative link between the reported fractures and the motor accident. To the extent that the opinion supports the claimant’s case on causation, we do not agree with it for the reasons outlined above.
Cervical spine
It is common ground that the motor accident caused injury to the cervical spine. This is shown by the contemporaneous records and the consistent complaints of cervical spine pain.
Despite the opinion of Dr Maxwell that the cervical spine condition should have resolved, the claimant has been consistent in his complaints of ongoing cervical spine symptoms since the motor accident.
We are satisfied that the cervical spine injury caused by the motor accident has resulted in an impairment of 5%.
Head injury
There was a blow to the head. All GCS readings were 15/15, there was no reported LOC and no post-traumatic amnesia. The findings on the brain CT and MRI scans were incidental and unrelated to the motor accident.
Anus
It is sufficient if the motor accident materially contributed to the condition giving rise to the impairment. The claimant has consumed Panadeine Forte as pain relief particularly by reason of his cervical spine injury which appears to be the main source of his pain. The consumption of that medication has materially contributed to his constipation and haemorrhoids.
Pre-existing injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[57] concerning the issue of onus.
[57] [2022] NSWPICMP 66 at [118]-[120].
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. There is no basis to make any deduction for any pre-existing condition[58] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment”.
[58] Clauses 1.31 of the Guidelines.
Permanent impairment
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
CONCLUSION
For these reasons we conclude that the assessment dated 29 July 2022 is revoked although we agree with the conclusion that the impairment is not greater than 10%. The new certificate is attached at the commencement of these Reasons.
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5
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