Zinn v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Zinn v QBE Insurance (Australia) Limited [2023] NSWPICMP 223
CLAIMANT:	Michelle Zinn
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	22 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Assessor Cameron’s assessment of disputes about treatment (MRIs not allowed) and minor, now threshold, injury (all injuries considered minor) and insurer’s review under section 7.26; claimant collided head on with a vehicle that turned right in front of her at an intersection; claimant alleged injuries to her neck, back and both shoulders; claimant sought whole spine MRI; insurer approved cervical spine MRI but not thoracic or lumbar spine MRIs; claimant was 53 and in 2015 had an L5/S1 anterior spinal fusion after years of back pain; claimant agreed neck injury was minor; Held – Panel did not re-examine claimant and had copies of pre and post-accident GP and specialist records which were considered; Panel satisfied that, as at the time of the accident, the claimant’s lumbar spine was asymptomatic; Panel not satisfied that there was any evidence of disruption of the previous fusion or that a disc bulge and any associated tear or fissure at L4/5 was caused by the accident as radiology revealed its presence as early as 2009; the MRIs were allowed on the basis of continuing complaints of pain and in order to rule out any damage to the previous fusion site; Medical Assessment Certificate (MAC) as to threshold injury affirmed; MAC as to treatment revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms Medical Assessor Cameron’s certificate of assessment dated 2 July 2022 concerning the minor (now threshold) injury medical assessment matter referred to the Personal Injury Commission. 2. Revokes Medical Assessor Cameron’s certificate of assessment dated 2 July 2022 concerning the treatment (MRI scans) medical assessment matter referred to the Personal Injury Commission.

STATEMENT OF REASONS

INTRODUCTION

Michelle Zinn was involved in a motor accident in the evening of 22 July 2020. She was proceeding straight through an intersection with a green light when another car coming towards her turned right in front of her and a collision occurred.
The claimant says she injured her neck, back and both shoulders in the accident and made a claim for statutory benefits against QBE, the third-party insurer of the vehicle that hit hers.
In the course of her claim, a medical dispute arose about whether Ms Zinn’s injuries satisfy the statutory definition of “minor injury” and that dispute was referred to the Personal Injury Commission (the Commission) for assessment. A dispute about treatment also arose and that dispute was also referred to the Commission for assessment.
Medical Assessor Cameron determined that Ms Zinn’s injuries were “minor injuries” within the statutory definition and determined the disputed treatment was not related to the accident and therefore not reasonable and necessary in the circumstances. The claimant was not satisfied with those decisions and referred the assessments to the Commission seeking a review.
On 25 October 2022 a delegate of the President determined there was reasonable cause to suspect a material error and has allowed the review and on

30 November 2022, the President has convened this Panel to conduct the review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Ms Zinn’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. For example, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
The Panel notes that the MAI Act was amended in 2022 to change the terminology from “minor” to “threshold” injuries. The decision of Medical Assessor Cameron and the submissions of the parties refer to “minor” injuries. The Panel will however refer to “threshold” injury when making our decision.
While Ms Zinn can pursue a common law damages claim under the MAI Act if she can establish negligence on the part of another driver, s 4.4 states that no damages can be recovered if the claimant’s injuries are “threshold” injuries.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”.[1] Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
[1] The scheme also provides for threshold psychological or psychiatric injury however as that is not a concern for this Panel no further reference will be made to it.
The effect of this section is that if Ms Zinn has sustained soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) her statutory benefits cease in accordance with ss 3.11 and 3.28 and she is unable to recover damages in accordance with s 4.4.
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines a soft tissue injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”. Therefore, while an injury to a nerve is a soft tissue injury, an injury to a spinal nerve resulting in radiculopathy is not a soft tissue injury.
Section 1.6(5) of the MAI Act says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Clauses 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and clause 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines.[2] Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
[2] Chapter 6 of the Guidelines.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act.[3] Clause 5.6 provides that a medical assessment should include:
“(a)    a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)     a review of all relevant records available at the assessment
(c)     a comprehensive description of the injured person’s current symptoms
(d)     a careful and thorough physical and/or psychological examination
(e)     diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
[3] The current version of the Guidelines is version 9.1 effective April 2023.
The method of assessment in Part 5 appears to extend to treating practitioners or medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

Dispute resolution

Schedule 2(2) of the MAI Act declares the following matters to be medical assessment matters:
(a) whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident (Schedule 2(2)(b)), and
(b) whether the injury caused by the motor accident is a threshold (previously minor) injury (Schedule 2(2)(e)).
Chapter 7, Division 7.5 of the MAI Act provides for the assessment of medical assessment matters by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

The claimant had referred medical assessment matter under Schedule 2(2)(b) and (e) to the Commission for assessment by way of a single application form.
Medical Assessor Cameron examined the claimant on 17 June 2022 and issued a single document on 2 July 2022 which included:
(a)   a certificate stating the claimant had sustained soft tissue injuries to her neck and lower back and that these were “minor” injuries;
(b)   a certificate certifying an MRI of the thoracic spine and another of the lumbar spine requested by Dr Prasad on 10 August 2020 were related to the injuries caused by the accident;
(c)   a certificate certifying the MRIs were not reasonable and necessary in the circumstances, and
(d)   a statement of reasons in respect of all three certificates.
Medical Assessor Cameron took the following history from the claimant:
(a)   Ms Zinn was 53 years of age living with three daughters and a grand-daughter;
(b)   at the time of the accident, she was the manager and operator of a traffic control company where she had worked for 11 years;
(c)
in 2015 she had an L5/S1 anterior spinal fusion after years of back pain.

Ms Zinn said she recovered well from this operation;
(d)   after the accident she was in shock, she exchanged details with the other driver and drove home;
(e)   the next day her neck and back were very sore, and she went to her general practitioner (GP) and had medication and investigations;
(f)    her symptoms continued and her employment was terminated three months later;
(g)   she had physiotherapy for six months which helped;
(h)   in January 2022 Ms Zinn obtained a full-time position in logistics for a construction company, and
(i)    in May 2022 she experienced an episode of severe back pain at work and required ambulance attendance and treatment at Campbelltown Hospital.
In terms of her current symptoms the claimant told Medical Assessor Cameron she had neck pain which limited her movements, but which had improved. In addition, she reported back pain which is significant and limits her mobility and she has a tremor.
The claimant said she takes Norflex, Tramadol, Panadeine Forte, Panadol Osteo and Lyrica and her GP is Dr Madagammana.
On examination Medical Assessor Cameron documents:
(a)   neck – mild and symmetrical reduction of motion (to 80%), no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints and negative nerve tension signs;
(b)   upper limbs – full range of shoulder motion (with pain on extremes) and at other joints of the arm. There were no neurological abnormalities;
(c)   thoracic spine – moderate and symmetrical reduction of motion (to 60%), no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints;
(d)   lumbar spine – moderate and symmetrically reduced range of motion (to 60%) no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints and negative nerve tension signs, and
(e)   lower limbs – full range of motion in the knees and other joints and no neurological abnormalities other than very brisk reflexes.
Medical Assessor Cameron reviewed the documentation and diagnosed soft tissue injuries to the neck and lower back. He says these injuries fit the definition of “minor injury” in the legislation noting that radiculopathy is not present and has not been present since the accident.
The Medical Assessor determined that the MRI scans in issue were requested after the accident because there were symptoms and therefore says “causation is established”. He says that the treatment requested is not reasonable and necessary because there were no fractures and no abnormal neurological findings.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant says that Medical Assessor Cameron failed to provide adequate reasons for his finding of a soft tissue injury in the lumbar spine. Ms Zinn submits that the Medical Assessor did not engage with the claimant’s case which included that the accident caused a tear of the L4/5 disc and disruption of the previous L5/S1 fusion.
The claimant refers to Dr Mastroianni’s opinion of 31 March 2022 that the L4/5 tear was caused by the accident and the previous fusion had been aggravated.
The claimant submits that a “tear of the L4/5 disc would represent a tearing of the annulus fibrosis being a non-minor injury”.
The claimant also submits that a “disruption of the Claimant’s fusion would involve the disruption of metal implants lodged in the claimant’s spine [which] would also not be a soft tissue injury”.
The claimant argues that Medical Assessor Cameron has given no reasons for excluding the diagnosis made by Dr Mastroianni.
The claimant further submits that Medical Assessor Cameron has failed to respond to the clearly articulated argument that the claimant sustained an L4/5 disc tear and disruption of the L5/S1 fusion.

Insurer’s submissions

The insurer responded to the claimant’s submissions as follows. The insurer said:
(a)   it is the role of the Medical Assessor to consider the medical evidence before him and make his own decision;
(b)   he clearly found no evidence of radiculopathy;
(c)   the claimant relies on two reports of Dr Mastroianni which in turn considered radiology that was not before Medical Assessor Cameron, and
(d)   the claimant bears the onus of proof, and having chosen not to put the radiology before Medical Assessor Cameron cannot now argue that the radiology established an injury that is not minor.
In further submissions dated 25 January 2023, the insurer refers to the radiology of August 2022 and the bone scan from December 2021 noting these were not before Medical Assessor Cameron.
The insurer restates its earlier submissions that the claimant has extensive history of symptoms in her spine and back and extensive degenerative changes. The insurer says there is no evidence to demonstrate that the L4/5 annular fissure was caused by the accident because it was first detected in December 2021 approximately 17 months after the accident and was not detected in earlier (post-accident) lumbar spine MRI’s.
The insurer says the claimant bears the onus.

Procedural matters

First directions and responses

On 20 December 2022, the Panel relayed a message to the parties noting that Medical Assessor Cameron had issued a single document comprising three certificates and one set of reasons and noting that the claimant took issue with only one of these being the minor injury certificate. The parties were advised the Panel was proceeding on the basis this was the only certificate being reviewed.
The claimant responded by way of a message in the portal:
“The Claimant's position is that the Review Panel is obligated to consider all matters the original assessment was concerned with. This would extend to the treatment disputes. See 2017 Act, s7.26(6) and Meuwissen v Boden.”
The insurer responded to the Panel by message in the portal as follows:
“… the insurer accepts that it is in the hands of the Commission as to whether the review panel considers all issues / disputes within the original Certificate or just the minor-injury dispute.”

Report and directions 15 February 2023

On 9 February 2023, the Panel met to discuss the Review and on 15 February 2023 reported to the parties.
The Panel noted the parties’ responses to the query concerning what had been referred to the Panel and what was before the Panel for review and said:
“The Panel notes the legislation is unclear on the point but, as the insurer does not object and the issues in the three disputes overlap, the Panel is of the view it should consider all three matters.”
In respect of the minor injury medical assessment matter, the Panel noted Medical Assessor Cameron was asked to assess injuries to the cervical spine and lumbar spine and that the parties raised issues only with the lumbar spine assessment. The Panel indicated that, subject to submissions it would proceed on the basis that the claimant accepted her cervical spine injury was a minor injury.
In terms of the treatment dispute, the Panel asked the parties to confirm that the thoracic and lumbar spine radiology the subject of the medical assessment matters referred to the Commission concerned treatment already provided, that is scans already undertaken.
The Panel requested records from Dr Habib, Dr Madagammana and A/Proff Van Gelder and any readily available photographs of the damage to the vehicles involved in the accident.
Finally, the Panel requested access to seven imaging studies including two lumbar MRI scans from before the accident (November 2014 and December 2017) and four MRI scans and a bone scan undertaken after the accident.

The parties’ responses

On 20 April 2023 the Commission relayed to the parties a message from the Panel:
(a) confirming receipt of the property damage files and the medical records the Panel had requested, and
(b) the Panel directed the parties to arrange for the radiology to be produced to the Commission and any final submissions to be uploaded to the portal by 5 May 2023.
On 4 May 2023 the claimant’s solicitor delivered to the Commission a large bundle of 38 separate pieces of radiology in hard copy or on disk. Six of the seven requested pieces of radiology were provided.
The Panel has received no final submissions from either party.

REVIEW OF THE EVIDENCE

The claimant has provided a bundle of documents comprising 111 pages. The insurer has provided a bundle of documents with 241 pages. Both parties have relied on the same 24 radiology reports and both parties have relied on the same bundle of GP records. This level of duplication is not satisfactory.
The insurer has, at the direction of the Panel lodged a bundle of documents from A/Prof Van Gelder[5].
[5] Document AD5 in the Commission’s file.

Claim form and claim documents

The application for personal injury benefits claim form is dated 28 July 2020.[6] The claimant says she sustained a whiplash injury with headache, neck pain, shoulder pain and back pain.
[6] Page 39 of the insurer’s bundle.
The claimant says she was not taken to, or sought treatment at hospital, and she denied having an illness or injury affecting the same or similar parts of her body at the time of the accident.

Treating medical records and reports

Royale Medical Centre Campbelltown

Notes have been provided from the Royale Medical Centre in Campbelltown.[7] The claimant has seen Dr Malaga, Dr Prasad and Dr Girgis at this practice. The records only go back to 16 January 2017. In the documented “past medical history” section of the records[8] there is a series of 2020 entries only.
[7] Page 59 of the claimant’s bundle.
[8] Page 59 of the claimant’s bundle.
There is an entry on 15 August 2017 where the claimant had a possible “right shoulder bicipital tendonitis – minor rupture” and a right shoulder ultrasound was requested. There are no records of neck or back pain from 2017 to 2020 that the Panel can ascertain.

The first attendance after the accident was with Dr Maluga on 23 July 2020:
“Review post MVA
Crashed into a car in front of her that ran a red light.
No intrusion into cabin – was able to drive car home. No airbag deployment. Able to mobilise well at the scene.
No abnormality through the night – no vomiting, no loss of conscious ness. This morning - developing head and neck pain. Noted generalised tremors – patient reports long standing. Denies SOB chest pain prior to injury or post.”
On examination Ms Zinn’s neck demonstrated a full range of motion, a CT scan was requested, and Diazepam prescribed. The claimant attended Dr Maluga on

26 July 2020 to discuss the results of the scans. Physiotherapy was ordered and Voltaren gel was recommended.
The claimant next attended her GP, Dr Prasad on 27 July 2020 complaining of pain in both shoulders (not radiating to the arms) and lower back pain on the left side.
On 10 August 2020, Dr Prasad referred the claimant to Dr Vishal Patel (neurologist) and further radiology was requested. It is this radiology that is the subject of the treatment dispute between the parties.
In an allied health recovery request dated 17 August 2020, Dr Prasad had requested physiotherapy and the diagnosis was of “whiplash leading to neck and low back sprain associated with headaches”. There is mention of a previous car accident 26 years ago (no injuries) and the L5/S1 fusion.
In the second allied health recovery request the claimant’s range of motion had improved but the claimant was still struggling at home and had not returned to work.
Ms Kim, psychologist and rehabilitation consultant provided a report to QBE dated

16 August 2020.[9] Ms Kim has a consistent history of the accident and records that the claimant was given a soft collar. Ms Kim records the claimant’s previous lumbar spine surgery and a workers compensation claim four years earlier concerning a knee injury. The Panel notes that there are no knee symptoms recorded in the Royale Medical Centre records. The claimant was said to have been working in an office environment due to her knee injury.
[9] Page 62 of the insurer’s bundle.

Optimal Health Medical Centre Gledswood Hills

The claimant has also seen Dr Madagammana of the Optimal Health Medical Centre and his records have been provided.[10] He first saw the claimant in August 2018. The Panel notes there do not appear to be any complaints of back or neck pain in these records before the accident.
[10] Document AD4 in the Commission’s electronic file.
On 26 May 2020, two months before the accident, the claimant presented with left sided tremors and a history of dropping things from her right hand. With a family history of motor neurone disease, the claimant was worried. She saw her GP again on

31 May 2020 as the tremors were increasing and she was referred to Dr Levy a neurologist. The claimant was given advice to cut down her drinking and stop smoking.
Dr Levy wrote to the claimant’s GP having seen Ms Zinn on 18 June 2020. He has a history of the 2015 surgery and that the claimant smokes 6 – 20 cigarettes a day and drinks six alcoholic drinks per night on the weekend. Her father had motor neurone disease when he was 54 (the claimant was 51 when examined by Dr Levy).
The claimant reported dysphagia (difficulty swallowing solids) since her back surgery. Her current complaint was a tremor in her left hand which was increasing and weakness in her right hand and dropping thinks held in her right hand. He reviewed her blood tests and a CT of the brain. On examination he noted “postural and mid action tremor of the left hand” but no other neurological abnormalities. He advised her to stop smoking and stop alcohol and see him again in 12 months’ time.
Ms Zinn had six consultations with Dr Madagammana at the practice after the car accident with no mention of it or any accident-related symptoms recorded.
Ms Zinn first mentions “neuropathic pain” to Dr Madagammana on 16 February 2022 and then 29 April 2022.
On 11 August 2022 she attended Dr Madagammana complaining of back pain which was 10 out of 10, with uncontrollable shaking in her legs with the right leg worse than left and said that this, “started out of nowhere”. There was no radiation and no numbness, and the claimant was given Tramadol. There are further attendances in August, September and October 2022 with similar complaints.

Dr Habib

Noting that many of the claimant’s radiological reports were addressed to Dr Habib, the Panel had directed the insurer to obtain copies of Dr Habib’s records.
On 5 April 2023 the Panel was advised by the insurer that multiple attempts had been made to obtain Dr Habib’s records but that he had retired, operated independently before he retired and his records could not be obtained from any other practice.
On 6 April 2023, the Panel noted the efforts made to obtain Dr Habib’s records and excused the insurer from complying with the direction in respect of those records. The Panel accepted there was no prospect of obtaining his records.

Insurer documents

QBE has requested a medication review. The Panel understands this involves a review of records from the Pharmaceutical Benefits Scheme (PBS) and GP documentation but not an interview or physical examination of the claimant.
The first of these reviews is dated 23 October 2020. The claimant had been prescribed Mersyndol which contains opioids and Valium which was said to be “a combination that should be avoided due to the risks of increased sedation, as well as impaired cognition and functioning”.
A second medication review notes two antidepressants had been prescribed and that the claimant was now only prescribed Mersyndol Forte with no Valium.
Within the insurer’s bundle[11] is a copy of the police report. The report suggests that the pre-crash speed of both vehicles was 20 kmph and that neither vehicle was towed.

Ms Zinn was identified as the only injured person.
[11] Page 57.
The insurer obtained a copy of the property damage files from GIO.[12] Many details have been redacted but the Panel notes the quote for the repairs to the claimant’s vehicle totalled over $6,000 of which over $2,600 was parts, $870 in pain and $2,000 in labour. Of the parts replaced this included the bumper bar and brackets supporting it as well as the radiator, condenser and washer container. This suggests to the Panel a not insignificant impact between the insured vehicle and the claimant’s vehicle.
[12] Document AD6 in the Commission’s electronic file.

Associate Professor Van Gelder

Associate Professor Van Gelder’s first letter to Dr Tang in Campbelltown is dated 7 March 2014. He records that Ms Zinn “had a long history of back pain, which has become more severe in the last twelve months”. The claimant referred to the pain as severe, said that her legs shake, that she had cortisone injections and was taking Lyrica and opiates.
He reviewed her on 11 April 2014 due to the claimant’s “unmanageable low back pain” and requested a biopsy be done. In a report of 14 May 2014, the biopsy was not done, and a repeat MRI was requested. Antibiotic treatment was commenced.
In a report of 21 July 2014, A/Prof Van Gelder expressed the view that the claimant had discitis and that she needed further antibiotic treatment. He said the recent MRI showed improvement and that it was unwise to have surgery.
The claimant saw A/Prof Van Gelder again on 30 October 2014 with worsening pain and again Professor advised a biopsy should be done and that an anterior lumbar interbody fusion was an option.
In a report dated 19 November 2014 the Professor noted the “inflamed appearance” of the L5-S1 disc had improved and there was minor bulging at L4-5 with subtle stenosis change at L5. The claimant wanted surgery, so he arranged for it to occur.
The surgery occurred on 15 October 2015 it was described by A/Prof Van Gelder as “routine”.
In a follow up report of 11 November 2015, the claimant was pain free, able to sit and was reducing her opiate intake. She had some residual back pain and tenderness but no symptoms in the legs.
On 1 June 2022 A/Prof Van Gelder saw the claimant and wrote to

Dr Madagammana noting the claimant complained of “unmanageable back pain”. She said the surgery (in 2015) had gone well but she had to be careful with activity.
She gave A/Prof Van Gelder a history of straining her back in the car accident of 2020 which was not a “big accident”. Her neck and mid-back symptoms were said to have improved, but her back has worsened. She described the pain as severe with shaking in the legs on the right progressing to her left. The claimant was taking multiple medications. The claimant reported a recent episode at work on 17 May 2022 where she had been doing a lot of walking up and down stairs and had a bad spasm with back pain and she took a week off work to deal with it.
Associate Professor Van Gelder reviewed the December 2021 MRI which showed “mild degenerative disc disease at L4-5”. The CT scan from January 2022 was said to show “common disc degenerative disease in the lower three lumbar discs”. He then says:
“… she does not have any complications of her fusion operation. The scan showed degenerative disc disease consistent with her age … these conditions may be a source of backache, but overall, the degree of degenerative change should be manageable. Her scans do not show any specific signs of trauma after the motor vehicle accident.”
Associate Professor Van Gelder recommended conservative management including workplace modifications, warming up exercises, aerobic exercises and weight loss and requests that she reduce her opiates. He also said the Lyrica was unlikely to help.
The claimant returned to see A/Prof Van Gelder on 7 October 2022. She was complaining about neck pain and that her legs were shaking when she sits and rests which she thought was related to her back pain. He conducted an examination and found normal strength and sensation with increase in reflexes but no [neurological signs] in the arms. He expressed the view that the shaking was unusual and “appeared functional”. The claimant was concerned about myelopathy, and he requested an updated MRI.
In a further letter of 24 October 2022, the claimant again reported shaking in her legs, a loss of confidence and engagement in physical activities but also considerable stress at home. A/Prof Van Gelder says:
“Ms Zinn does not have any important structural concerns in her thoracic or cervical spine to correlate with her leg symptoms. I suspect her shaking of legs is functional. I recommend she follow this up with you. I will be happy to review her at any stage in the future if it would be helpful or to discuss her condition, but a specific appointment has not been made.”

Radiology

The claimant provided 38 radiological imaging studies which Medical Assessor Assem has reviewed on behalf of the Panel.
Radiological reports were also included within the documents as follows:
(a)   2 September 2008 - X-ray and CT scan of the lumbar spine[13] addressed to Dr Tang of Campbelltown was done for “unrelieved lower back pain for three weeks without radiculopathy”. This showed L3/4 and L4/5 mild bulge but no prolapse. At L5/S1 there was a mild broad bulge;
[13] Page 21 of the claimant’s bundle.
(b)   23 September 2009 - CT scan lumbar spine to Dr Tang[14] – L4/5 mild broad based disc bulge as well as protrusion to the right – stable when compared to September 2008. At L5/S1 – small broad based postero-central disc protrusion with mild central canal stenosis – stable and some minor degenerative facet joint disease;
[14] Page 32 of the claimant’s bundle.
(c)
25 November 2009 - MRI Lumbosacral spine[15] at the request of
[15] Page 28 of the claimant’s bundle.

Dr Abraszko (neurosurgeon) - low back pain radiating to the right leg. The L5/S1 disc was said to be hydrated but with no protrusion and minor degenerative changes. There was a small to the right disc bulge at L4/5 causing effacement of the anterior and right aspect of the thecal sac;
(d)   21 December 2010 – CT lumbar spine[16] addressed to Dr Tang - comparison to scans from 2 September 2008 – no significant alteration with minor disc degenerative disease at L5/S1 and mild bulge at L4/5 and L5/S1;
[16] Page 38 of the claimant’s bundle.
(e)   10 March 2013 – MRI lumbar spine[17] at request of Dr Darwish (neurosurgeon) due to “low back pain, right leg pain” and a comparison to previous scans was done. The L4/5 disc bulge appeared smaller and degenerative changes at L5/S1 had progressed;
[17] Page 40 of the claimant’s bundle.
(f)    16 May 2013 – report of CT guided injection procedure[18] by Dr Nagra into L5/S1 addressed to Dr Darwish;
[18] Page 27 of the claimant’s bundle.
(g)   28 June 2013 - MRI brain and cervical and thoracic spine[19] undertaken at the request of Dr Bazina (neurosurgeon) due to “bilateral lower limb tremors, low back pain and intracranial spinal pathology”. No structural cause was evident to explain the claimant’s symptoms;
[19] Page 20 of the claimant’s bundle.
(h)   12 November 2013 – MRI lumbar spine[20] addressed to Dr Levy – persistent pain along sacral area – L4/5 minor broad based posterior disc bulge without significant central canal stenosis. Mild degenerative facet disease. L5/S1 further bulge of the disc;
[20] Page 34 of the claimant’s bundle.
(i)    5 June 2014 – MRI lumbar spine[21] addressed to A/Prof Van Gelder with history of back pain and discitis. At L5/S1 the changes had regressed slightly. At L4/5 there was mild bulging with facet joint hypertrophy causing slight narrowing of the spinal canal which was stable in appearance;
[21] Page 41 of the claimant’s bundle.
(j)
11 November 2014 - MRI lumbar spine[22] performed at the request of
[22] Page 23 of the claimant’s bundle.

A/Prof Van Gelder – indication was said to be right sided sciatica and comparison scans of 5 June 2014 and 12 November 2013 – L5/S1 disc is desiccated and narrowed “the remaining discs and spine are unchanged from the previous study”;
(k)   22 July 2015 - MRI cervical spine[23] addressed to Dr S Habib of Campbelltown with a history of neck pain radiating to both arms – minimal bulging at C4/5, C5/6 and C6/7 with “mild effacement of the anterior aspect of the thecal sac”;
(l)    24 July 2015 - MRI right shoulder[24] addressed to Dr S Habib with a clinical note of “neck pain radiating to both limbs and right shoulder pain with restricted movement”. The conclusion was mild acromioclavicular (AC) joint degenerative change, mild subacromial bursitis, mild subscapularis and supraspinatus tendinopathy. There was no rotator cuff tear;
(m)     29 July 2015 – report of ultrasound guided injection right shoulder procedure[25] to Dr S Habib;
(n)   6 November 2015 – venous doppler right leg[26] addressed to A/Prof Van Gelder and copy to Dr Tang;
(o)   11 December 2017 – MRI lumbar spine[27] addressed to Dr S Habib. The indications for the scan were stated to be “low back pain with thigh symptoms on a background of previous spinal surgery”. At L4/5 a small broad based disc protrusion “slightly eccentric to the right side” said to be causing some canal stenosis and potential impingement of the exiting right L4 nerve root – not significantly altered since 2014. At L5/S1 there were no complicating features from the surgery, no canal stenosis or neural compression or significant facet joint disease;
(p)   8 May 2019 – MRI right shoulder[28] addressed to Dr S Habib - supraspinatus and subscapularis tendinosis with tiny tears, and
(q)   28 June 2019 – CT scan of the brain[29] addressed to Dr Madagammana of the Optimal Health Medical Centre at Gledswood Hills. The clinical reason for the scan was said to be “severe sudden onset headaches, started three days ago” and the result was a normal study.
[23] Page 24 of the claimant’s bundle.
[24] Page 31 of the claimant’s bundle.
[25] Page 30 of the claimant’s bundle.
[26] Page 19 of the claimant’s bundle.
[27] Page 37 of the claimant’s bundle.
[28] Page 29 of the claimant’s bundle.
[29] Page 35 of the claimant’s bundle.
After the accident, the following radiology has been obtained:
(a)   on 23 July 2020 there is a poor quality report of a CT of the claimant’s brain and cervical spine[30] addressed to Dr Maluga and cervical spondylitic changes noted;
[30] Page 43 of the claimant’s bundle.
(b)
on 27 August 2020 an MRI of the cervical spine[31] was addressed to
[31] Page 36 of the claimant’s bundle.

Dr M Girgis with a clinical history of “pain and stiffness neck and back after MVA” and a comparison was made with the 22 July 2015 MRI. Appearance was said to be stable with no significant changes;
(c)   the first post-accident MRI of the thoracolumbar spine was obtained on
20 October 2020.[32] This is the radiology that QBE declined to fund and which was paid for by the claimant. It showed:
[32] Page 6 of the claimant’s bundle.
(i)thoracic spine – no significant abnormalities in particular “no disc bulging, herniation or exit foraminal stenosis identified”, and
(ii)lumbar spine – there was disc desiccation noted in the lumbar discs which is a sign of degeneration. Evidence of the previous disc fusion “with reactive changes noted” but no significant neural compression or exit foraminal narrowing identified, minor facet joint arthropathy. At L4/5 there was a small disc bulge to the right side of the thecal sac and disc osteophytic encroachment on the right exit foramen with bilateral facet joint arthropathy;
(d)   a further MRI of the lumbar spine dated 2 February 2021 showed the past fusion and no other significant issues;
(e)   the MRI on 2 December 2021 (report dated 3 December 2021 addressed to Dr Habib)[33] was done due to “severe lower back pain, both buttocks” and showed L5-S1 – anterior lumbar intervertebral fusion with good signal decompression and no neural impingement as well as an L4-5 annulus tear and disc bulge without neural impingement. Also revealed was facet joint arthropathy at L3-4 and L4-5. There was no facet joint oedema to suggest active facet joint inflammation;
(f)    a bone scan undertaken on 6 December 2021[34] reports there is arthritis in the left sacroiliac joint and disco vertebral uptake at the site of the previous L5-S1 fusion. The clinical indication for the bone scan was “recent low back pain following MVA in July 2020. Previous lumbar fusion in 2015”, and
(g)   an MRI undertaken on 4 August 2022 at the request of A/Prof Van Gelder[35] compared the 11 December 2015 MRI and reported: L1/2/3 “no focal disc protrusions; L4/5 shallow disc protrusion with annular fissure and contacting but not displacing the L5 nerve roots. There was minor right foraminal stenosis contacting the right L4 nerve root with potential irritation and at L5/S1t he spinal canal and exit foramina were adequate and the bone graft harvest site could be seen with a defect in the right posterior iliac spine.

Medico-legal reports

[33] Page 5 of the claimant’s bundle.

[34] Document AD2 in the Commission’s file.

[35] Page 1 of the claimant’s bundle.

Dr Mastroianni

Dr Mastroianni provided a report to the claimant’s solicitor dated 31 March 2022[36]. He has a consistent history of the accident. Ms Zinn says she woke up the next morning with pain in her neck, upper and lower back and went to the doctor to see Dr Maluga.
[36] Page 99 of the claimant’s bundle.
The claimant gave Dr Mastroianni a history of then being under the care of Dr Girgis[37] (from the same practice) and was referred for an MRI of the cervical spine, physiotherapy and medication. She said the insurer refused to pay for an MRI of the back and she could not afford it.
[37] The Panel has corrected the spelling of Guirgis adopted by Dr Mastroianni to Girgis.
Ms Zinn said she had previously seen Dr Habib but could not see him without a referral due to his specialist qualifications and her GP referred her for an MRI of the neck and back. Dr Mastroianni records that Dr Girgis wanted a further MRI but the insurer declined and she had the MRI as a private payment. She had changed GPs and was taking Lyrica and Medicare funded physiotherapy.

Dr Mastroianni has a history of “massive” back pain which is constant. Back pain is aggravated by prolonged sitting, standing and walking. Ms Zinn has intermittent right leg pain and pain in the back of the thigh and calf. She says her neck is better “she has no pain in the neck, but the neck is restricted when looking to the right”.
Under the heading “Past history”, Dr Mastroianni says, “there is no history of any previous neck problems” and he does have a history of the back surgery in 2015. He says there was no history of injury before this surgery and that Ms Zinn’s back pain slowly came on over three years. After the surgery she says she had no back pain or leg pain and no symptoms immediately before the accident.
Dr Mastroianni says the claimant sustained soft tissue injury to her neck which has recovered. He then says “she sustained injury to the lumbar spine causing tear in the L4-5 disc and aggravating / disrupting a previous L5/S1 fusion causing chronic back pain and right leg somatic pain”.
He had reviewed the radiology but he only had the post-accident imaging namely the MRI of the neck of 27 August 2020, the X-ray of thoracic and lumbar spine dated

30 September 2020, the MRI of 2 December 2021 of the neck and the bone scan

of 6 December 2021.
Dr Mastroianni says Ms Zinn has aggravated the previous lumbosacral fusion as evidenced by the degree of pain and the bone scan where there is marked increased uptake.
There was an earlier report from Dr Mastroianni to the claimant’s solicitor before the lumbar spine MRI supporting the need for the further radiology.[38] The further radiology took place, paid for by the claimant but not the insurer.
[38] This report is dated 17 November 2017 and is found at page 107 of the claimant’s bundle.

Dr Antoun (insurer)

Dr Antoun wrote a report for the insurer.[39] He noted current complaints of stiffness in the neck but no signs of radiculopathy. Ms Zinn had discomfort between the shoulder blades but no upper limb weakness or sensory changes. In the lower back the claimant complained of an ache if she sits for too long. There was no radiculopathy and no suggestion of neural compromise.
[39] Page 109 of the insurer’s bundle.
On examination of the neck there was dysmetria (asymmetrical range of rotation (left and right) and with extension and flexion). There were no signs of radiculopathy. There was a full range of shoulder movements.
In the thoracic and lumbar spine, flexion and extension were asymmetrical with no neurological signs or symptoms in the lower limbs.
Dr Antoun refers to the radiology (he had imaging studies from both before and after the accident) and says there were “non-specific” degenerative changes, and he diagnosed a whiplash disorder and musculoligamentous strain which he considered were within the definition of “minor injury”.

Other assessments

Medical Assessor Samuell assessed the claimant’s psychiatric injuries on

18 August 2021 and issued a certificate on 27 August 2021 certifying that the claimant sustained an adjustment disorder as a result of the accident which is a minor injury.

CONSIDERATION OF THE ISSUES

Is a medical examination necessary?

The claimant’s original submissions in support of the review (22 July 2022) were silent as to whether a re-examination was necessary. The insurer’s submissions (26 August 2022) did not address this point.
In the report and directions document issued to the parties after the teleconference on 9 February 2023, the Panel advised the parties that it does not propose to undertake a re-examination of the claimant at that time. The Panel noted that the real issue between the parties was causation of any L4/5 disc “tear and protrusion” and the L5/S1 fusion disruption and that these issues were likely to be determined by a careful review of the actual radiological films.
Upon receipt of the additional documents (but not the radiology) the Panel sent a message to be relayed to the parties on 6 April 2023. The Panel advised it was meeting on 20 April 2023 to determine how the assessment was to progress and whether a re-examination of the claimant was required. The parties were invited to make submissions on or before 20 April 2023. The teleconference was subsequently deferred to 15 May 2023 and the parties given until 5 May 2023 to provide any final submissions.
The radiology was provided on 4 May 2023 and provided to Medical Assessor Assem.
No further submissions have been received and in particular, no submissions on the issue of a medical examination.
The Panel notes the two issues in dispute are whether there is a tear of the L4/5 disc caused by the accident and whether the spinal fusion at L5/S1 was disrupted in the accident. These are matters which the claimant herself cannot answer and require a careful analysis of the reports and records and a review of the radiology by the medical assessors on the Panel.
The Panel therefore determined an examination of the claimant would not assist us in determining the issues in dispute and decided to undertake the Review on the papers.

Has the L5/S1 fusion been disrupted by the accident?

Dr Mastroianni, in his report of 31 March 2022 diagnosed an injury to the lumbar spine “aggravating / disrupting a previous L5-S1 fusion”.
In expressing that opinion, Dr Mastroianni had the records of the Royale Medical Centre and the MRI of 20 October 2020. The Panel notes Dr Mastroianni did not have any of the pre-accident scans of the claimant’s lumbar spine nor did he have the records from A/Prof Van Gelder or from Dr Madagammana which are now before the Panel.
Associate Professor Van Gelder, who had operated on the claimant in 2015 and had many consultation with her leading up to and after that surgery, says in his report of

1 June 2022 that the radiological imaging showed “good bony union” at L5-S1 and no signs of loosening or dislodgement of the implant. He said, “her scans do not show any specific signs of trauma after the motor vehicle accident”.
It is the Panel’s view that the report of Dr Mastroianni and the opinions expressed therein should be given little weight. He has not had the benefit of the significant pre-accident radiology or the opinions of the claimant’s treating neurosurgeon or the records of Dr Madagammana and his note of 11 August 2022 that the claimant had severe back pain with uncontrolled shaking in her legs which “started out of nowhere”.
There have been four MRI scans of the claimant’s lumbar spine. It is the clinical judgment of the medical members of the Panel that the post-accident radiology does not demonstrate any disruption of the previous L5-S1 fusion.
The Panel notes that the 20 October 2020 MRI noted “reactive changes” at L5/S1 and that the bone scan of 6 December 2021 reported vertebral uptake at that level. While changes like this after an accident could be caused by the accident the medical members of the Panel are of the view these changes are not reflective of trauma. The fused vertebra would cause an increased uptake in any event due to the instability in the spine and the claimant was found to have active arthritis in the sacroiliac joint. Previous imaging has revealed arthropathy in the L5/S1 region and any “hot spots” shown in the bone scan at that region are, in the medical assessor’s view due to further degenerative changes in Ms Zinn’s spine.

Is there an L4/5 disc protrusion caused by the accident?

It is the clinical experience of the Medical Assessors on the Panel that the term "annular fissure" is often used interchangeably with "annular tear", even though the former implies a degenerative origin, and the latter implies some form of trauma was involved. A bulging disc can result in fissures or tears in the ligamentous ring of the disc which would be a non-threshold injury if caused by the accident.
Medical Assessor Assem conducted a review of the imaging relevant to the lumbar spine from both before and after the accident.
It is the clinical judgment of Medical Assessor Assem that the reports of the radiologists in respect of each imaging study reviewed were an accurate interpretation of the findings in the studies.
The 15 December 2017 MRI report stated that there was a “small broad-based posterior, slightly eccentric to the right side” which was causing “minor central canal stenoses” and possible impingement at the exiting right L4 nerve root.
The first MRI of the claimant’s lumbar spine after the accident on 20 October 2020 noted “a right paracentral disc bulge distorting the right side of the thecal sac with osteophytic encroachment on the right side and bilateral facet joint arthropathy”. All of these features are, in the clinical judgment of the medical members of the Panel, degenerative findings and not indicative of trauma.
The radiologist who reported the MRI scan of 4 August 2022 at the request of

A/Prof Van Gelder, compared his findings with a 11 December 2015 MRI[40] stating that “shallow posterocentral disc protrusion with annular fissure, again slightly eccentric to the right… minor right foraminal stenosis contacting the right L4 nerve root, with potential irritation, is unchanged” (emphasis added).
[40] That piece of radiology does not appear to have been provided to the Panel amongst the 38 items provided by the claimant’s solicitor and there is no corresponding report in the bundles from the parties or in the bundle of letters and reports from A/Prof Van Gelder.
The claimant’s radiological reports show the emergence of an L4/5 right paracentral disc bulge as early as 25 November 2009. The radiology undertaken after the accident shows the disc bulge which reports say has not developed further since the accident. This suggests therefore that the annular fissure in the L4/5 disc was present before the accident and has not developed further (or any tear further torn) since the accident.
The claimant has a well-documented pre-accident history of lumbar spine pain up to December 2017. The Panel accepts that the claimant’s lower back was not symptomatic at the time of the accident as there is no mention of it in the records of the claimant’s GPs and no radiology of the lumbar spine has been provided from between December 2017 and the date of the accident. However, the disc protrusion at L4/5 has been present since at least 2009. While her lower back and its pre-existing degenerative changes at the L4/5 level may have been aggravated by the accident on 22 July 2020, the Panel is not satisfied that there is any evidence of any bony injury or injury to nerves or a complete or partial rupture of any tendons, ligaments, menisci or cartilage in the lower back caused by the car accident.

Should the disputed MRI treatment be allowed?

On 10 August 2020, Dr Prasad requested that the insurer approve the claimant having a full spine MRI. On 19 August 2020 QBE advised the claimant it approved the MRI of the cervical spine only and denied the thoracic and lumbar spine MRI. The claimant sought an internal review which QBE undertook on 3 September 2020. QBE affirmed its original decision finding the two disputed MRIs were not reasonable and necessary.
The claimant was injured on 22 July 2020. She had a CT scan of her brain and cervical spine the next day having complained to her GP about head and neck pain. On 27 July 2020 the claimant attended again by which stage she had developed shoulder and lower back pain.
It is the clinical judgment of the medical members of the Panel that it is medically plausible for the claimant’s shoulder and lower back symptoms to have become noticeable (or more noticeable) five days after the accident. The records clearly indicate that Dr Prasad was aware of the claimant’s previous fusion surgery. In the light of the claimant’s lower back history and with complaints of pain following a motor accident it is, the Panel’s view that it would have been necessary for Dr Prasad to exclude any aggravation or dislodgement of that previous surgery and any new injury in the thoracolumbar area.
It is therefore the Panel’s view that the MRIs requested of the claimant’s thoracic and lumbar spine are related to the injuries sustained in the accident and reasonable and necessary in the circumstances in particular due to the claimant’s pre-existing back surgery.

CONCLUSION

Medical Assessor Cameron assessed the claimant’s cervical spine injury as a soft tissue injury and therefore a “minor” injury within the meaning of the legislation as it then was. Neither party has challenged that finding and no submissions have been received in response to the Panel’s invitation to advise of any challenge. The Panel is therefore satisfied that the claimant’s cervical spine injury is a threshold injury within the meaning of the legislation.
In terms of Ms Zinn’s injury to her lumbar spine, the Panel is of the view she has sustained a soft tissue injury to her lower back which has stirred up her pre-existing degenerative lumbar spine condition. The Panel is not satisfied the claimant has sustained an injury to “nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. Ms Zinn therefore has a threshold injury to her lower back.
While the Panel accepts the claimant was injured and has developed symptoms in her neck and lower back the Panel must apply the legislation which we have done.

Ms Zinn’s injuries are soft tissue injuries and do not fall within any of the exclusions which would take her beyond the threshold.
As the Panel has come to the same conclusion as Medical Assessor Cameron concerning the dispute about threshold injuries, his certificate of that medical assessment must therefore be confirmed.
The Panel has however come to a different view to Medical Assessor Cameron in respect of the disputed treatment and his certificate of that medical assessment matter must therefore be revoked.

Actions

Download as PDF Download as Word Document

Citations

Zinn v QBE Insurance (Australia) Limited [2023] NSWPICMP 223

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

[2023] NSWPICMP 223

22 May 2023