AAI Limited t/as AAMI v Ko
[2024] NSWPICMP 448
•8 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Ko [2024] NSWPICMP 448 |
| CLAIMANT: | Anna Ko |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; medical dispute as to treatment and care; claimant was the driver of a vehicle struck by the insured vehicle on driver’s side; the insurer admitted liability for the claim; on-going injuries to right shoulder, lower back and both hips; Medical Assessor found further physiotherapy treatment was not reasonable and necessary; Held – Medical Review Panel found proposed treatment relates to the accident but is neither reasonable or necessary; Medical Assessment Certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel confirms the certificate dated 14 December 2023 issued by Medical Assessor Alan Home. CERTIFICATE The Review Panel confirms the certificate dated 14 December 2023 issued by Medical Assessor Alan Home. |
STATEMENT OF REASONS
INTRODUCTION
Anna Ko (the claimant) was the unaccompanied seat-belted driver of a Mazda sedan travelling along Windsor Road. As she progressed through the intersection to make a right-hand turn, her vehicle was struck on the driver’s side by the insured vehicle, coming from her right. The claimant’s vehicle was T-boned at the level of the front driver’s side door. Multiple airbags deployed. The cabin of the claimant’s vehicle was smoky. She was able to alight from the vehicle with assistance from passers-by. The claimant was transported to Hawkesbury Hospital with complaints of pain in her right shoulder, chest, lower back and abrasions to her wrists and legs. Her complaints of pain at the right shoulder, lower back and both hips continued. The insurer admitted liability for the claim.
AAMI (the insurer) insured the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer admitted liability for the claim.
There are disputes between the claimant and the insurer about whether a request for further physiotherapy treatment is reasonable and necessary, in the circumstances, under Schedule 2, cl 2(b) of the Act.
ASSESSMENT UNDER REVIEW
The claimant was referred for assessment by Medical Assessor Alan Home who certified on 14 December 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 14% and IS GREATER THAN 10%:
· right shoulder/clavicle – clavicle fracture, bursitis, kinesiophobia;
· lumbar spine – soft tissue injury;
· right hip – labral tear, and
· left hip – labral tear.
Medical Assessor Home noted that, whilst the claimant suffered low back pain prior to the accident, due to spinal metastases, the quality of information in the medical record was insufficient to determine an impairment rating above 0% WPI for the pre-existing lumbar spine condition.
Medical Assessor Home also certified that injuries to both wrists and both legs, caused by the motor accident, had resolved with no assessable impairment rating.
In relation to the treatment and care dispute, Medical Assessor Home certified as follows:
The following treatment and care:
· the request for further physiotherapy treatment, and
· the request for three hours of domestic cleaning services and fortnightly gardening;
RELATES TO THE INJURY caused by the motor accident.
Medical Assessor Home certified that the request for further physiotherapy treatment is not reasonable and necessary in the circumstances. He referred the request for three hours of domestic cleaning services and fortnightly gardening services to an occupational therapist for determination of the amount of domestic care required, without deciding or certifying whether the requested care was reasonable and necessary, in the circumstances.
The Review Panel notes that the medical dispute concerning whole person impairment has been resolved by agreement between the parties. It is only the treatment dispute that remains before the Review Panel for determination.
OTHER ASSESSMENTS
The Review Panel notes that Medical Assessor Christopher Grainge certified that right-sided rib fractures have resolved and give rise to no assessable permanent impairment.
The Review Panel notes that Medical Assessor Lisa Middleton certified on 5 February 2024 that the following treatment and care:
· three hours of domestic support should be provided on a fortnightly basis, and
· assistance with lawns and gardens on a weekly 'basis in spring/summer and three weekly in autumn and winter,
IS REASONABLE AND NECESSARY in the circumstances.
The Review Panel is not aware if either party has sought a review of that certificate. In any event, whether that treatment and care is reasonable and necessary in the circumstances is not a matter for the Review Panel to determine.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] 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 proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There 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 REVIEW
The insurer sought a review of Medical Assessor Home’s certificate on the bases that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects. The claimant brought the application within the time prescribed by s 7.26(10) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer submitted that Medical Assessor Home erred in his assessment on the following bases[BG1] :
(a) Failed to properly apply the Motor Accident Guidelines by using the range of motion method to assess impairment in the right shoulder. As Medical Assessor Home had diagnosed the claimant with kinesiophobia, the insurer submitted that cls 6.40 and 6.50 of the Guidelines mandated the use of another assessment method.
(b) Failed to disclose his path of reasoning when assessing permanent impairment of the claimant’s lumbar spine. The insurer submitted that, as Medical Assessor Home had found it was plausible there was additional pain arising from the underlying known metastatic disease (of which there was incontrovertible radiological evidence), it was unsatisfactory to attribute the observed clinical signs to the subject accident, without a thorough exposition of the competing explanations. They included progression of the claimant’s cancer. The insurer submitted that is particularly so when the hospital records for the post-accident admission contained no reference to accident-related back pain.
(c) The insurer noted that symptoms satisfying a DRE lumbosacral class II impairment were not recorded by either Dr Rosenthal or Professor Cameron who assessed the claimant only a few months earlier. It was submitted that the earlier absence of those complaints, but their presence during Medical Assessor Home’s examination within three months thereafter, could indicate either her cancer condition had worsened and/or her movement was restricted due to her “irrational fear”. The insurer submitted that it was not apparent that Medical Assessor Home considered either factor, despite their being directly raised in the earlier commentary in his reasons.
(d) The insurer submitted that Medical Assessor Home either did not have proper regard to the advance of the claimant’s metastatic breast cancer on her lumbar spine since the accident, or if he did, failed to disclose his path of reasoning to indicate to the parties his consideration of that issue.
(e) Made material errors in his conclusion that the accident gives rise to a need for domestic assistance, as a consequence of restrictions in the lumbar spine or right shoulder, when causation of those injuries was disputed.
The insurer’s application for review was opposed by the claimant. It was submitted that Medical Assessor Home had some discretion in assessing whether or not the results of measurements of range of motion are plausible. The claimant noted that the insurer did not suggest what alternative method should have been used by Medical Assessor Home to assess disability in the right shoulder. As to the lumbar spine, the claimant submitted that Medical Assessor Home was cognizant of Guideline 6.32, and applied the same, in determining whether to make a deduction for pre-existing impairment, arising from metastatic disease. As to Medical Assessor Home’s decision in relation to domestic assistance, the claimant submitted that there was sufficient evidence that the claimant has ongoing impairment in the right shoulder and lumbar spine, as a result of the subject accident. Overall, the claimant submitted that the insurer had not demonstrated that Medical Assessor Home’s assessment was incorrect in a material respect.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 19 February 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Home’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Home’s failure to disclose his path of reasoning to indicate that consideration was given to the advance of metastatic breast cancer on the claimant’s lumbar spine since the accident, and thus how he arrived at the ultimate determination.
Accordingly, the application was accepted and was referred to the Review Panel, which is to assess the injuries and most disputes that were referred to Medical Assessor Home.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material, relevant to the remaining matter in dispute, which the Review Panel has considered:
(a) Claimant’s submissions dated 1 February 2024 in Opposition to Review (previously summarised).
(b) Certificate dated 14 December 2023 of Medical Assessor Alan Home who summarised the claimant’s submissions relating to the need for additional physiotherapy treatment as follows:
(i)the insurer relied upon two medical reports of Dr Andrew Keller dated 2 and 11 March 2022;
(ii)Dr Keller never physically examined or assessed the claimant and formed his opinion upon his review of papers and telephone calls to treatment doctors;
(iii)Dr Keller’s findings are erroneous and at odds with the treating evidence, presentation and symptomatology of the claimant;
(iv)Dr Keller in his report appears to have simply disregarded Dr Mostafa’s opinion that the claimant’s injuries have not resolved;
(v)scripts from a rehabilitation provider and exercise physiologist should be closely considered, noting the claimant was not assessed by Dr Keller, or given the right of reply, or collaboration with those individuals in the preparation of reports;
(vi)with regards to the proposed physical therapy at 29 June 2022 from
Mr Kossikan Beadle, which was denied, the claimant submits that she was referred for additional physiotherapy treatment and management of her ongoing physical injuries, primarily the right shoulder, hips and lumbar spine;(vii)it is submitted that the denial of physiotherapy which was primarily made based on the reports of Dr Keller, dated 2 March 2022, should be disregarded;
(viii)the claimant makes reference to the independent physiotherapy consultation report of Mr Elvish. It is submitted that Mr Elvish, like Dr Keller, did not examined or assessed the claimant, but rather reviewed documents, made telephone calls and assumptions;
(ix)it is submitted that Mr Elvish is not a treatment provider or a SIRA Authorised Health Practitioner, in accordance with s 7.52 and cl 8.16 to 8.4G of the Guidelines and, as such, is not authorised to give evidence;
(x)it is submitted by the claimant that she has continued to experience ongoing pain, discomfort and restriction from her injuries, which have severely impacted upon her ability to engage in normal activities of daily living, and
(xi)it is submitted that the insurer’s refusal of further treatment has denied the claimant reasonable opportunity to improve function and mobility.
The insurer relied upon the following material, relating to the remaining issue in dispute, which the Review Panel has considered:
(a) Submissions dated 11 January 2024 for review of Assessor Home’s treatment certificate.
(b) Commission’s certificate and reasons dated 14 December 2023 by Medical Assessor Alan Home who summarised the insurer’s submissions as follows:
(i)with regard to the request for the AHRR (No. 6) dated 6 April 2022,
Dr Beadle requested the claimant receive a further eight sessions of physiotherapy, two sessions per week for four weeks. A partial approval was given on 6 May 2022 for a further four sessions of physiotherapy at one session per week for four weeks;(ii)the partial approval was based on the recommendation of Mr Elvish in the Independent Physiotherapy Consultants’ report dated 16 March 2022 and was provided to assist with the claimant’s recovery and development of self-directed strategies;
(iii)the insurer notes that the request was made 15 months after the motor accident and, at that stage, the claimant had received 40 physiotherapy sessions up to that time;
(iv)Dr Beadle’s clinical notes confirmed the treatment was only assisting in the management of the claimant’s symptoms with little function and ADL changes;
(v)the insurer relied upon the report of Dr Andrew Keller who concluded that the claimant had recovered from injuries caused by the accident and no further treatment was required;
(vi)the insurer relies upon the nationally endorsed clinical framework for the delivery of health services in Part 4.76 of the Guidelines, submitting that the further physical intervention beyond the remaining 4 sessions of physiotherapy treatment, is not reasonable and necessary and should be denied, and
(vii)the insurer relies upon Dr Keller’s report dated 11 March 2022 that the claimant had recovered from the physical injuries sustained in the accident.
Dr Keller’s reports, to which Medical Assessor Home refer, are not included in the insurer’s review bundle of documents.
RE-EXAMINATION
The claimant was assessed on 29 May 2024 by Medical Assessor Shane Moloney whose report is as follows:
“MVA 31 January 2021
Ms Ko attended the medical suites at PIC on May 29, 2024. She was unaccompanied.
Pre-accident history
Ms Ko stated that he had been diagnosed with breast cancer with metastases in 2019 and has been under the care of Dr Marx since then. She states that since 2020 she has been in remission but attends every 2 months for a checkup. She is on 4 types of chemotherapy long-term. Prior to this diagnosis, Ms Ko had been working as a vice president in Morgan Stanley bank since 2014 and has not returned to work since the diagnosis of breast cancer. She also states that prior to this accident she had been attending a personal trainer on a weekly basis and doing yoga daily. She also states that she had minor low back pain prior to the accident which didn’t prevent her usual activities.
History motor accident
Ms Ko states that she was an unaccompanied driver of her Mercedes sedan (not a Mazda as previously reported) when she was T-boned by a car coming from the driver side. The full impact was on the front driver side door. She was wearing a seatbelt at the time and all airbags were deployed. She was helped out of the car by a witness and subsequently transported to Hawkesbury Hospital by the ambulance. At that stage she states that she had widespread pain with abrasions to the legs, chest and wrist and right shoulder including the low back.Subsequent history since the accident
Ms Ko states that as she had recently moved to a house in Schofields and was living alone that she started with a new GP. After investigations there was a possible pathological fracture to the 2nd and 3rd ribs and clavicle on the right. Subsequent MRIs reported labral tears in both hip joints. Her GP referred her for physiotherapy which was paid by the insurance company for one year after the accident and was then ceased after Dr Keller reported that she didn’t need any further treatment. After some deliberation the physiotherapy was restarted in 2023 with approval for another 8 treatments. Ms Ko also used the Medicare rebate for another 5 sessions of physiotherapy. Since then she has been self funding for massage treatment. Ms Ko considers that the physiotherapy gives relief for 3 or 4 days to the right shoulder and lower back region. It has been in the form of dry needling and deep tissue massage.
Current treatment
Present medication is Nurofen 2 a day and Voltaren or physiogel applied to the shoulder and low back. She self treats with a massage gun and an occasional massage at a local clinic. She consults GP about once per month who helps with the chemotherapy injections. On a regular basis she consults Dr Marx her treating oncologist every 2 months.
Current symptoms
There is persistent low back pain particularly over the sacroiliac joints and an anterior pain in both hips. The pain in the hips increases with any significant movement. There is no referral of pain to the legs. The main pain in the right shoulder is over the scapula and inter scapula region. It is a feeling of weakness and global numbness in the right arm. The left shoulder and arm are asymptomatic and at present the neck is pain free with no pain in the wrists.
Ms Ko states that she is able to walk for about 5 minutes slowly and has not driven since the accident due to anxiety. She lives alone in a house and manages takeaway food and goes to the shops once per week. She does some light housework herself such as vacuuming and recently the insurer has funded lawn and garden upkeep and domestic assistance. She has been told that she had been granted 6 sessions of this and then there will be another review.Clinical examination
Ms Ko walked into the rooms with an antalgic gait and was dependent on a walking stick in the left arm. She stated that she had travelled to the PIC rooms by train and then bus.
Cervical spine
On testing range of movement, flexion/extension, side bending rotation were all 25% of expected range with no dysmetria. On palpation there was generalised tenderness over the entire cervical musculature but no guarding or spasm was noted. On neurological examination of the upper limbs, reflexes were equal bilaterally with symmetrical power with a global decrease in sensation in the entire right arm.
Shoulders
On inspection of the shoulders no muscle wasting was observed. There was a near normal range of movement of the left shoulder which was pain free but the right shoulder was limited due to pain behaviour. This was repeated using a goniometer but the pain she states is in the whole shoulder region including the scapula limits any meaningful assessment of range of movement.
I discussed with Mr Ko previous assessments by Mr Crow dated 27 May 2021 when she had a normal range of movement of the right shoulder which was 4 months after the accident. Another physiotherapist, Mr Beadle reported a full range of active movement of the right shoulder on 6 April 2022 which was 15 months after the accident. She felt that physiotherapy treatment help the range of movement and she has had none this year.
Lumbar spine
Ms Ko walked with an antalgic gait and was very unsteady without the use of the stick for support. She was stooped over and was unable to walk on heels and toes or squat due to poor balance. Similarly testing for range of movement of the lumbar spine was limited to 25% of expected range in flexion/extension, side bending and rotation. Straight leg raise when lying was 60° bilaterally and limited by low back pain and when seated 80° bilaterally with negative sciatic nerve root tension tests. On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes noted. No muscle wasting was apparent with the circumference of the lower thighs 40 cm bilaterally (10 cm above the superior patella pole) and 34 cm bilaterally at the maximum circumference of the calves.
The legs were otherwise asymptomatic with no abnormalities detected in the knees and ankles.
Hips
It was difficult to assess movement of the hips due to pronounced pain behaviour. Passive flexion of either hip because pain at 90° as did in the attempted abduction or adduction or rotation. Thus it was impractical to assess range of movement of either hip.
Wrists
On examination the wrists no abnormalities were noted and on testing active movement of both wrist, there was a full pain free range of movement using a goniometer.
Discussion
The Review Panel has to determine whether further physiotherapy treatment is causally related to the accident and if so whether is necessary and reasonable. According to Ms Ko she has been funded for another 6 domestic assistance and gardening which is subject to further review.
Ms Ko maintained that the physiotherapy treatment gives her some relief for 3 or 4 days, so was keen to continue the therapy. However, it is now over 3 years since the accident and no sustained or long-term benefits have been demonstrated despite quite a lot of physiotherapy sessions.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Moloney with which Medical Assessor Gibson concurs.
[5] Section 7.26(6) of the MAI Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the bases of their assessment which accords with the reasons provided by Medical Assessor Home.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287
CONCLUSIONS
For the above reasons, the Review Panel confirms the certificates issued by Medical Assessor Alan Home on 14 December 2023 and adopts his reasons for so doing.
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