AAI Limited t/as AAMI v Oram

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Oram [2023] NSWPICMP 406
CLAIMANT:	Robert Elias Oram
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	22 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment by Medical Assessor (MA) Machart and insurer’s review under section 83; claimant injured in rear end collision in May 2017; insurer referred dispute about domestic assistance, general practitioner consultations, medication, physiotherapy, neurosurgical consultations, lumbar spine decompression and fusion, exercise program and gym membership and argued that treatment not related to the injuries caused in the accident and not reasonable and necessary in the circumstances; MA had allowed all treatment; issues of reliability of the claimant’s evidence and significant issue of causation; claimant had been involved in a significant accident in September 2005 injuring his neck and back; claimant said he recovered within a year or two and had no further treatment; records obtained by the insurer suggested this was not correct and that the claimant continued to complain of chronic pain until October 2012; issue about force of the accident and competing biomechanical experts; Held – claimant’s evidence unreliable due to poor memory and biomechanical reports of concern due to absence of photographs of damage to claimant’s vehicle; Panel satisfied claimant injured his neck and lower back in the accident and that the injuries were exacerbations of pre-existing conditions and degenerative changes; Panel found no treatment related to the accident; certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Machart dated 7 November 2022. 2. Certifies that none of the treatment in dispute between the parties is related to the injuries caused by the accident.

STATEMENT OF REASONS

INTRODUCTION

Robert Oram was involved in a motor accident on 20 May 2017. He was the driver of a motor vehicle struck from behind.
Mr Oram says he injured his neck and back in the accident and made a claim for damages against AAMI, the third-party insurer of the vehicle that hit his vehicle.
A dispute about the quantum of damages for Mr Oram’s future treatment and care needs arose in connection with that claim. AAMI referred multiple medical assessment matters to the Personal Injury Commission (the Commission) for assessment to assist it with resolving the damages claim.
On 7 November 2022, Medical Assessor Machart determined that all of the treatment and care claimed by Mr Oram was related to the accident and was reasonable and necessary in the circumstances.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 13 February 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 22 February 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Mr Oram’s claim is a claim for damages made in accordance with the provisions of the Motor Accident Compensation Act 1999 (the MAC Act). His entitlement to damages, and the quantification of those damages, is governed by the provisions of the Act and common law principles.
Damages under the MAC Act may be awarded for non-economic loss in accordance with Part 5.3 of the MAC Act and damages for economic losses may be awarded as limited or regulated by the provisions in Part 5.2. Damages for past and future treatment and care (including gratuitous care) needs are awarded as part of an injured person’s economic or pecuniary losses.
Section 83 of the MAC Act (in Part 4.3) imposes upon insurers a duty to provide treatment related to the injuries caused by the accident. The insurer need only pay for treatment that is verified and is reasonable and necessary. Once the claim is finalised (by settlement or otherwise) the claim is at an end and the insurer is no longer under a duty to provide treatment to the injured person.

Dispute resolution

Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:
“(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident.”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Medical Assessor Machart’s, further medical assessments and the review of medical assessments by this Review Panel.[1]
[1] Sections 61, 62 and 63 of the MAC Act.
Section 61(2) of the MAC Act provides that a Medical Assessment Certificate is conclusive evidence as to the matters certified in court or Commission proceedings including proceedings to assess the quantum of damages.
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Machart examined the claimant on 21 April 2022 and issued his certificate on 7 November 2022.
He was asked to assess the following eight treatment disputes:
(a)    domestic assistance from the date of the medical assessment and for the remainder of the claimant’s life expectancy;
(b)    general practitioner (GP) consultations (0-4 per year) from the date of the medical assessment and for the remainder of the claimant’s life expectancy;
(c)    analgesic and anti-inflammatory medication from the date of the medical assessment and for the remainder of the claimant’s life expectancy;
(d)    physiotherapy sessions (0-14 per year) from the date of the medical assessment and for the remainder of the claimant’s life expectancy;
(e)    neurosurgeon consultations (number unspecified) from the date of the medical assessment and for the remainder of the claimant’s life expectancy;
(f)    proposed lumbar spine decompression and fusion surgery;
(g)    exercise program and exercise physiology (amount unspecified), and
(h)    gym and heated pool membership for one or two years.
Medical Assessor Machart was asked to assess two disputes per treatment modality that is whether the treatment concerned related to the injuries caused by the accident and whether that treatment was reasonable and necessary in the circumstances. In other words, he was asked to assess 16 individual medical disputes.
After summarising the submissions from the parties and undertaking a 10 page plus review of the evidence (including late evidence), the Medical Assessor took the following history from the claimant:
(a)    he had a car accident in 2005 resulting in neck and lower back pain. The back pain lasted for 12 months;
(b)    he was involved in a car accident in 2006[2] in which he injured his neck and lower back. He says he recovered after two years and had no symptoms from this incident in the months before the car accident;
(c)    the current accident was a rear end collision where the car in front stopped intending to park, the claimant stopped in time, but a third vehicle did not;
(d)    Mr Oram was working as a courier at the time of the accident;
(e)    he was aware of headache, neck and lower back pain within several hours, had some time off work, went to the GP and had imaging;
(f)    leg pain started two or three weeks after the car accident accompanied by instability;
(g)    the claimant had physiotherapy and was referred to Dr Nair for epidural injections which did not ease his symptoms, and
(h)    he had a laminectomy on 29 October 2018 with no benefit and in fact he was worse with more pain in the leg.
[2] While Dr Machart records in his decision a 2005 accident and a 2006 accident, it would appear that the claimant only had one earlier accident, which occurred in September 2005 but which sometimes is referred to in a history as having happened in 2006.
The claimant’s current symptoms were of lower back pain radiating into the left leg, medial left thigh and outer left foot. He had numbness over the left foot, mainly on the dorsum and in the big toe area and he had pain at the base of the neck. The claimant gave a history to Medical Assessor Machart of pain in the neck which began radiating into the left forearm three or four years ago (2018) without further injury.
Mr Oram said he was taking Mobic, Panadeine Forte, Celebrex, Lyrica and Voltaren.
On examination of the cervical spine, Medical Assessor Machart found no tenderness, a symmetrical range of movement, a diminished left biceps reflex when compared to the right and diminished sensation in the thumbs on the left-hand side.
When the lumbar spine was examined, Medical Assessor Machart found muscle guarding and diminished symmetrical movement at half the normal range. There was diminished sensation in the dorsum of the left foot and big toe. Straight leg raising was positive on the left and negative on the right. The calf circumference was diminished by two cm and there was diminished strength in the left ankle.
Medical Assessor Machart said there was no inconsistency.
He summarised the documents as follows:
(a)    there was a prior injury cervical and lumbar spine with symptoms that had resolved;
(b)    there was damage to the claimant’s car but it was drivable, no hospitalisation, suggesting a minor soft tissue injury, and
(c)    [Medical Assessor] Gehr, determined a significant injury which, because of the presence of radiculopathy attracted a whole person impairment (WPI) of 10%. The injury led to an operation with a poor outcome and radiculopathy persists.
He found a soft tissue injury to the lumbar spine and cervical spine and that the lumbar radiculopathy found by Medical Assessor Gehr was not relieved by the laminectomy. The claimant has ongoing treatment and care needs as a result of the lumbar radiculopathy found by Medical Assessor Gehr. He then says:
“The damage to vehicle was not severe. Despite that, [Medical Assessor] Gehr determined substantial pathology caused by the MVA, radiculopathy, and surgey not having relieved radiculopathy. Accepting [Medical Assessor] Gehr’s view, then it follows that there remains substantial pathalogy, consistant with needs for treatment, and such caused by the MVA.”
Medical Assessor Machart determined:
(a)    housework assistance is needed as a result of the lumbar spine injury and “10 years is common in regular orthopaedic practice” and 0-4 hours per week is reasonable and necessary;
(b)    GP consultations for the rest of his life is related to the injury and 0-4 per year for 10 years is reasonable and necessary;
(c)    analgesic and anti-inflammatory medication will be needed for the rest of his life to treat the radiculopathy (no specification of quantities);
(d)    physiotherapy for the next five years would be related to the accident and reasonable and necessary;
(e)    consultations with a neurosurgeon for five years on a “per needed base” would be caused by the accident and 10 years would be reasonable and necessary;
(f)    lumbar spine decompression and fusion is related to the injury sustained in the accident, but is not necessary now but a possibility in the future if there is deterioration;
(g)    an exercise program developed by an exercise physiologist is standard treatment for chronic back pain such as that caused by the accident, and is reasonable for up to five years, and
(h)    the claimant needs gym and heated pool membership which is reasonable and necessary for the next two years.

Other assessments

Medical Assessor Machart was also asked to undertake an assessment of the claimant’s whole person impairment (WPI) in separate proceedings numbered F10282348/22. He issued the certificate and reasons for that assessment on 8 March 2023 following the medical examination of 21 April 2022.
Medical Assessor Machart found a soft tissue injury to the lumbar spine manifesting in radiculopathy. He assessed the lumbar spine injury in the diagnostic related estimate (DRE) category III which translated to a WPI of 10%. He considered any prior lumbar pathology had “healed” and did not deduct anything for a pre-existing impairment.
He also found a soft tissue injury to the cervical spine which he assessed at DRE category I which equated to a 0% WPI. He found “new symptoms now not caused” by the car accident of 20 May 2017. While there were clinical signs of radiculopathy in the cervical spine, “these could not be interpreted as caused” by the car accident five years earlier.
An application for review of that decision was lodged by the claimant. The Panel has been advised that on 2 June 2023 the President’s delegate refused the application for review.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer’s submissions in support of its application are dated 1 December 2022.[3] The insurer identifies at [7] four errors as follows:
(a)    the failure to apply the “test of consistency” set out in cl 6.40 and 6.41 of the Motor Accident Guidelines and put to the claimant inconsistencies between the examination and other documents, records and activities [8] – [13]. The claimant was said [14]-[17] to be inconsistent before Dr Keller but that Medical Assessor Machart “did not see inconsistency”. Medical Assessor Machart had identified that different ranges of motion were presented to different practitioners but did not put this to the claimant [19];
(b)    failure to provide sufficient reasons and disclose his path of reasoning in respect of causation [31] other than to rely on Medical Assessor Gehr’s opinions [34];
(c)    failure to adequately consider relevant material in particular the insured driver’s statement and reports of Drs Keller and Breit [39] and particularly in the light of the inadequate reasons for causation findings, and
(d)    denial of natural justice as “the insurer is not permitted to attend a minor injury assessment” and the insurer’s “voice” is through the documents [55] and therefore the Medical Assessor has to demonstrate he has considered and had proper regard to the statement from the driver and the insurer’s experts.
[3] Page 29 of the insurer’s bundle.
Following the Panel’s first teleconference, the insurer lodged submissions[4] identifying at [7] the real issue in dispute as one of causation and says at [8] that emergency services did not attend the accident of the lumbar spine injury and the claimant did not go to hospital and that photographs indicate a relatively minor collision.
[4] Page 3 of the insurer’s bundle.
The insurer identifies at [10] a 15 October 2005 motor accident which resulted in a claim for injuries related to the neck and lower back and provides a brief summary of the relevant medical records which can be further summarised as follows:
(a)    complaints of lower back and neck pain, treatment and specialist consultations up to 23 October 2012;
(b)    medico-legal reports of a WPI arising from that accident of 10% (Dr Noll) and 24% (Dr Lawson), and
(c)    a Medical Assessment Service (MAS) determination in June 2007 of lumbar spine WPI at 10% (Medical Assessor Marsh).
The insurer raises issues with the reliability of the claimant’s evidence at [11] noting that the claimant has advised that his injuries and symptoms from the 2005 accident resolved within a year. The insurer also says at [83] that the claimant was inconsistent when examined by Dr Keller and that Dr Briet raised concerns about the validity of the claims made.
The insurer says at [13] the claimant has had two further accidents (April 2016 and October 2018) the later of which was said to have aggravated the previous condition.
The insurer notes at [14] that Medical Assessor Gehr found on 16 August 2018 a WPI of 10% for the lumbar spine and noted that the cervical spine injury had resolved. The insurer says the claimant’s neck injury sustained in the accident has long since resolved and that any lower back injury does not give rise to the need for any further treatment.
The insurer submits at [18]-[28] that the claimant’s accident was a minor accident and:
(a)    relies on a statement from the insured driver that the impact was minor and there were “small scratches in the paint work”;
(b)    Dr Griffiths’ report suggests the exchange in forces was less than 10kmph and that the claimant was exaggerating the impact and damage, and
(c)    that it was unlikely a neck injury occurred and there was “no possible injury mechanism” for a lumbar spine injury.
The insurer at [34]-[60] relies on the evidence of Drs Keller and Breit who refer to the previous accident as having caused a permanent impairment on a background of significant degenerative changes.
The insurer then deals with each of the treatment modalities:
(a) domestic assistance is not needed, was needed as a result of the previous accident and Professor Fearnside, the claimant’s own expert says the claimant should be able to manage, and
(b) there is no need for future treatment and none of the claimant’s experts support treatment for the rest of his life.
The insurer says at [82] that its primary argument is that the claimant was not injured at all in the accident but that if he was, it was a minor or temporary aggravation which has long since resolved.

Claimant’s submissions

The claimant’s submissions in response[5] to the application for review engage with the insurer’s submissions as follows:
(a)    the test of consistency quoted by the insurer relates to the Motor Accident Injuries Act 2017 (MAI Act) and scheme and not the MAC Act [12]-[14]. In any event the Assessor is not required to bring to the attention of the claimant every inconsistency [20];
(b)    the Medical Assessor provided “very detailed and lengthy” reasons and addressed the submissions from both parties, came to his own view which happened to coincide with the view of Medical Assessor Gehr [26]-[28];
(c)    failure to give consideration to relevant material – the Medical Assessor has referred to Drs Briet and Keller [36] and therefore must have considered them and he was not obliged to refer to the driver’s statement [35], and
(d) there was no denial of natural justice, and this is not a minor injury assessment under the MAI Act [39].
[5] These are attached to document R1. The submissions attached to the claimant’s bundle relate to the WPI dispute and review.
The claimant lodged further submissions responding to those of the insurer dated 31 March 2023.[6]
[6] Page 6 of the claimant’s bundle. These are not dated however the claimant’s index suggests the date of the document is 21 April 2023.
The claimant says:
(a)    in relation to the attendance of emergency personnel and the claimant continuing to work he relies on his statement and the explanations therein;
(b)    a Medical Assessor does not have the expertise to determine from photographs whether an accident was minor or not;
(c)    as to the 2005 accident and injuries, the claimant relies on his statement which sets out the effects of that accident and the claimant’s work history after that claim was settled;
(d)    the Panel should approach the assessment by considering:
(i)what treatment is reasonable and necessary and why, and
(ii)what is the reasonable frequency and duration of such treatment and why, and
(iii)that the Panel should defer to an occupational therapist in terms of the type, frequency and cost of care and assistance.
(e)    the insurer has not provided the report following a December 2022 medico-legal consultation with Dr Carney and the claimant relies on his earlier reports which have been served.

Procedural matters

The President’s delegate allowed the review as follows:
“[6] The insurer submits that Assessor Machart failed to provide sufficient reasons for his finding that the treatment and care requested by the claimant were causally related to the accident.
[7] I am satisfied that there is reasonable cause to suspect that Assessor Machart’s reasons do not provide sufficient information such that a reader may determine his reasoning for finding that the requested treatment was causally related to the accident.”
The claimant lodged an application to admit late documents on 8 May 2023. The document in question is a biomechanical report of Zoran Bakovic dated 5 May 2023.
In a message relayed to the Panel on 10 May 2023, the insurer objected to the inclusion of that document in the claimant’s evidence on the basis that it has not been afforded the opportunity to respond and the claimant has had seven months since the insurer served the report of Dr McIntosh.
The Panel met on 9 May 2023 and reported to the parties on 10 May 2023 confirming receipt of the bundles from the parties, advising of the medical examination and requesting the parties advise the Panel of the progress of the WPI review proceedings.
The Panel has determined that it is appropriate to allow the claimant’s expert’s report into evidence. While the claimant had been in possession of the Dr McIntosh report for some time, the report of Mr Bakovic was received in time for the Panel to consider it and is relevant to the issues in dispute.

REVIEW OF THE EVIDENCE

The Panel has before it:
(a) a bundle of documents from the insurer of almost 500 pages. This document will be referred to as AD1 in these reasons, and
(b) a bundle of documents from the claimant in excess of 440 pages. This document will be referred to as AD2 in these reasons.
In addition, the Panel has the claimant’s additional bundle of documents (AD3) comprising Mr Bakovic’s report.
The Panel is mindful of the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[7]
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … the function of the medical assessor is quite different [to that of the court]. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[7] [2022] NSWSC 1079 at [63].
While the Panel has read and considered all of the nearly 1,000 pages put before it, the Panel does not intend to summarise them all, only those reports and records that the Panel considers relevant and significant to the matters in dispute between the parties.

Claim documents

Claim form

The claim form is signed as true and correct by Mr Oram and dated 31 October 2017.[8] He discloses a previous motor accident and claim involving NRMA which he dates to 2006. He says he had previous back pain in 2006.
[8] Page 41 AD1.
Mr Oram listed as the injuries from the current accident simply, back and neck.
Dr Kodsi completed the medical certificate for the claim form on 14 June 2017. He says he has been the claimant’s doctor for four years and that he first saw the claimant after the accident on 22 May 2017.
He documents his clinical findings as “tender and spasms paracervical and paralumbar area [with] limitation of movement in the neck and lower back.” He imposed some lifting restrictions and advised the claimant may need physiotherapy and orthopaedic review. Dr Kodsi did not identify any comorbidities or previous injuries.
Mr Oram has provided three statements.[9]
[9] The statements are found at pages 36, 46 and 54 of AD2.
The first statement (dated 18 May 2020) details the accident and injuries and work history of the claimant:
(a)    before leaving Lebanon in 2002 he undertook a variety of jobs including as a spray painter and cement renderer;
(b)    he was also a musician;
(c)    he could not speak much English when he arrived but has learned to speak and understand spoken language but he has difficulty reading and writing English;
(d)    he worked as a musician playing keyboard in a restaurant for about two years after he arrived (the Panel notes that would be until 2004);
(e)    he was then out of work for two years before he obtained employment at another restaurant. While he was unsure of the date, he thinks he had been there for about a year before his 17 September 2005 accident;
(f)    the impact of that accident was forceful, and his car was written off;
(g)    the injuries he sustained in the 2005 accident were to the neck (with symptoms in the left arm) and the back (with symptoms in his left leg). Ten days after his accident the pain was so severe he fell down and was taken to Westmead Hospital;
(h)    he was off work for a year after his first accident and then returned to his restaurant job;
(i)    he made a claim, resolved it for $100,000 of which he received $49,000;
(j)    he had difficulties at work after the 2005 accident and “about two years, possibly a little bit longer after the accident I was pain free”;
(k)    if he had ongoing symptoms, they were mild and he gave the example of sitting at a computer for several hours after which he would get an ache in his neck and sitting for that long caused an ache in his back. He would also feel symptoms if he lifted or carried anything heavy, but he did not have pain all the time;
(l)    he did not seek medical treatment and the pain was never as severe or constant as it has been since 20 May 2017;
(m)     after returning to work at the restaurant a year after the accident, he continued working there until about 2008 when the restaurant closed;
(n)    the claimant then obtained work packing flowers for delivery to supermarkets;
(o)    this required him to stand on a concrete floor for extended periods of time and he would develop aching in his neck and back as a result, but he never sought medical treatment and took Panadol from time to time;
(p)    he saw Dr Psarommatis and then Dr Kodsi but rarely saw a doctor;
(q)    he started work in 2010 as a medical and pathology courier for Medlab full time six days a week working 55 hours a week;
(r)    he separated from his wife in 2013 and then divorced and their home was sold;
(s)    when he was working at Medlab before his second accident “I would, occasionally experience some aching in my back or neck, particularly at the end of a long shift. However, the pain was never severe was not constant and was only felt occasionally.” He would take Panadol. He kept composing music and would get occasional neck or back pain;
(t)    he returned to Lebanon to visit his mother for four weeks in mid-2018 which was “a very difficult and painful trip” and he went to his daughter’s wedding in Spain in July 2019 and the flights also increased his pain and discomfort;
(u)    while he acknowledges some aching and discomfort in his low back and neck while working at Medlab he says it was never enough to prevent him from working;
(v)    the 20 May 2017 accident was “very forceful.” While he had his foot on the brake his car moved forward by about a metre and he was “thrown forward towards the windscreen”. The seatbelt “then caught me very forcefully and pulled me back into the seat.” He says he was shocked and concerned about the damage to the car and the other driver;
(w)   immediately after the accident he said his back and neck were stiff and a bit sore “it was similar to the ache and discomfort that I would experience at the end of a long shift and as usual I just thought it would go away with a little bit of rest.”
(x)    he says he car was “very badly damaged at the rear. The other car was very badly damaged at the front” but both cars were driveable;
(y)    he drove his car to Medlab, picked up another car and continued working;
(z)    at the end of his Saturday shift, at about 6.00pm, he was feeling severe and constant pain in his neck and lower back and pain in his left leg and had not experienced these symptoms, “for a long time since I’d recovered from the 2005 accident”;
(aa)    the pain got worse over the Sunday, and he developed pain over his left neck and shoulder and this pain went down his arm into the upper arm;
(bb)    he saw Dr Kodsi on 22 May 2017 and could not remember whether he told the doctor about his left shoulder, but he was more concerned about his neck and back. He was sent for low and mid back X-rays;
(cc)     he was classed as a contractor and so was not entitled to sick leave and Medlab apparently refused to process his workers compensation claim;
(dd)    he had to keep working in order to get paid;
(ee)    his employment was terminated on 29 February 2018. The claimant says this was because he forgot to pick up a sample two weeks running which Mr Oram explains was due to his inability to concentrate and lack of sleep since the accident;
(ff)    he obtained some work in October 2019 at a Kitchen company but he could not continue that work due to pain;
(gg)    Mr Oram says he continues to experience constant and severe low back and neck pain, left leg and left shoulder pain and headaches. He says he has difficulty with memory (due he says to medication);
(hh)    he had another accident on 7 October 2018 which did not cause any additional pain, and
(ii)    he had back surgery on 29 October 2018 which improved his symptoms for a time but they have now recurred.
The second statement dated 9 February 2021 deals with the additional evidence about the 2005 accident. Mr Oram says:
(a)    his mother came out to help him but stayed during the pandemic;
(b)    he and his mother moved into a two bedroom flat and his mother did all the housework and cleaning;
(c)    he had been given the records of Dr McCusker and now recalls a recurrence of “back pain sciatica in about August 2010.” He said he had a steroid injection and changed jobs;
(d)    he acknowledges that he continued to complain and seek treatment for his back until October 2012;
(e)    he had been shown the photos of the other car and says he recalls both vehicles being damages “and I perceived this damage to be relatively back”;
(f)    he amends the date of his employment ceasing at Medlab from 29 to 23 February 2018;
(g)    he clarifies that he did have additional pain after the 7 October 2018 accident but says this was only for two weeks;
(h)    he acknowledges some relief from the cortisone injection in October 2018;
(i)    he has been certified partially fit for work since September 2019 but he has been unable to find work, and
(j)    the treatment he has had since the accident has given temporary relief from his symptoms only.
The third statement dated 19 April 2022 responds to the statement given by the insured driver and says there are many factual errors in it:
(a)    the location of the accident is wrong;
(b)    the traffic was not “bumper to bumper”. He says the traffic was light because it was a Saturday;
(c)    the speed of the traffic was not 25km, Mr Oram says “most people had been travelling between 40-50km”;
(d)    he came to a complete stop when the vehicle in front indicated it was going to park in a vacant spot;
(e)    he had been stationary for 5-10 seconds before he heard a loud noise “and felt the force of the rear-ending collision”;
(f)    Mr Oram did not stop suddenly;
(g)    Mr AKP[10] says he applied his brake and swerved to the right and slowed down to 20 kms. Mr Oram says this is wrong as the front (not the corner) of Mr AKP’s vehicle hit the middle of the back of Mr Oram’s vehicle;
(h)    the force of the collision was great causing shock and damage he denies it was more than a “slight bump”;
(i)    they swapped details and Mr AKP did not inspect the damage, and
(j)    the claimant clarifies that after the accident, someone from Medlab brought a replacement vehicle to him and that his previous history of driving back to Medlab to get another vehicle was incorrect.
[10] While the name of the insured driver is known to both parties, it is not necessary to include his name in the interest of reducing the risk of identity theft. His statement is found at page 49 of the insurer’s bundle.

Insured’s statement

Mr AKP gave a statement to the insurer’s investigator on 30 May 2020 by telephone. Mr AKP was, at the time a 46-year-old construction worker.
He says that at the time of his accident he was driving a 2005 model Toyota Corolla [22] with his daughter in a child seat in the back [29].
He says he was driving along Station Street at Fairfield close to the shopping centre [30] in what he described as “bumper to bumper” traffic [34]. He saw the claimant’s car stop without warning and he braked and swerved right to avoid a collision. He says he was travelling under 20 kms per hour at the time [37].
He got out of his car and “saw a minor paint scratch on the driver’s rear side of the [claimant’s vehicle] near the rear bumper bar.” He said both he and the claimant asked after each other and both said they had no injuries [45]. “We both inspected each other’s vehicles and agreed that the damage was minor with small scratches in the paint work with no panel damage.”

Property damage records

A highly redacted quotation for the repair of the insured’s vehicle is provided and photographs of the damage to the insured vehicle have been provided.[11]
[11] The property damage file is found at page 59 of AD1.
These documents are referred to and relied on by the parties in the experts’ report referred to below. The Panel does not appear to have photographs of the claimant’s vehicle. This was a company car and there are no records of the repairs made to it.
Mr Griffiths had been provided with copies of the photographs of the damage to the rear end of the claimant’s own vehicle after he was involved in the October 2018 accident.

Biomechanical experts

Insurer

The insurer retained Dr Griffiths to provide a report.[12] He notes [page1] that photographs of the rear of the claimant’s vehicle have not been obtained.
[12] The report is dated 22 July 2022 and is found at page 151 of AD1.
Dr Griffiths notes the accident was not reported to the police for over five months and he had before him the insured’s statement as well as the claimant’s statement. He records the insured vehicle was a 2006 Toyota Camry. He perused the Comminsure repair quotation for the insured vehicle and ascertained what parts needed to be repaired or replaced (but not necessarily removed). He described in detail the visible damage and the methodology behind determining speed and energy exchange.
Dr Griffiths notes the claimant’s car was a Toyota Yaris and notes the safety features of this vehicle.
At 5.4, Dr Griffith expresses the view that there was an increase in forward velocity of

10kmph, but that some of this increase would have been absorbed by the structures of the bumpers of both vehicles however he accepts on a conservative basis a 10kmph change in velocity.
Dr Griffiths restates the statements from the parties and notes the controversy between them. He then summarises the claimant’s pre-accident and post-accident medical state.
Dr Griffiths suggests at page 45 that the claimant is exaggerating on the basis he says that the two cars were extensively damaged and that the insured was driving at 40-50kmph. He says, “the number of items which need to be removed and replaced [during the course of a repair] on a vehicle is not an indicator of severity.” He says the indicator of severity is what was damaged and what needs to be removed and repaired. He also expressed the opinion that the pre-accident speed of the insured vehicle was 17.7kmph.
Dr Griffith says at page 48, “there is sound physical evidence to show that there was no acute change in the abnormal pathology of the claimant’s neck following from this incident.” He then explains at page 54 the safety features and design of headrests and says that the claimant’s accident “occurred at a severity that was well below the threshold for neck injury.”
In terms of the claimant’s back, Dr Griffiths records the claimant’s pre-accident back problems and notes his previous back injuries were so bad Mr Oram could not work for a period although acknowledging the last mention of back pain in the records was four years and seven months before the accident. Dr Griffiths says at page 56 that there is evidence of abnormal lumbar spine pathology less than 10 years before the accident and no new acute abnormal pathology. He also says that the support of the seat back and base “and the relative robustness of the lumbar spine” would not have allowed sufficient movement for there to be a strain and abnormal pathology.
He says at page 57, “as there is no possible injury mechanism which could have applied differential forces to the adjacent vertebrae of the lumbar spine, then [the claimant] cannot have received new lumbar spine injury in this incident.”

Claimant

The claimant relies on a report from Zoran Bakovic dated 5 May 2023.[13]
[13] The report is document AD3 in the Commission’s electronic file.
Mr Bakovic lists at [5] the assumptions he has made including that the claimant’s vehicle was stationary when hit and that the claimant’s vehicle moved forward one metre after impact even though he had his foot on the brake at the time. He also has a history that Mr Oram noticed back and neck pain after the accident.
Mr Bakovic agreed with Dr Griffiths’ methodology of calculating velocity change but noted at [39] that there were no photographs of the claimant’s damaged vehicle. He says at [41] that “damage to the rear side of the lead vehicle is far more extensive and prominent that damage sustained by the front side of the rear vehicle” because the front of a car is a harder area than the rear.
He also estimated that the likely velocity change was 10kmph but noted that Dr Griffiths did not include in his calculations the fact that the claimant’s vehicle moved forward by a metre which he suggests meant the speed of the insured vehicle at impact was at least 20km which in turn means Mr AKP could have been travelling at 40km before braking.
Mr Bakovic says there is no evidence to support the history from the insured of him swerving to avoid Mr Oram’s vehicle in that the damage was consistent with a front on to rear end collision and there was no report of ‘yawing’ or rotation of the vehicles on impact.
Mr Bakovic says there are two movements of the spine in a rear end accident, a movement backwards into the seat and the head making contact with the headrest and then a forward motion.
He suggests there is analysis that supports Mr Oram sustaining injuries.

Treating medical records and reports

Before the accident

Dr Andrew Kam, neurosurgeon provided treatment and wrote to the claimant’s GP after the 2005 accident.[14] A summary of the reports is provided:
(a)    17 February 2006 – since the accident he had headaches and neck pain with shoulder pain radiating into his left arm. He had numbness and paraesthesia involving his arm. He also had lower back pain with numbness involving the left foot and pain in the left thigh;
(b)    17 August 2006 – the claimant was experiencing upper extremity and neck symptoms as well as lower back pain and lower limb symptoms – he requested MRI scans and further review;
(c)    9 November 2006 – the claimant had been “quite uncomfortable” and had been developing paraesthesia. Dr Kam suggested there was an osteophyte disc complex a C4-5 causing the trouble. He was advised to have a foraminal block;
(d)    29 March 2007 – the L4-5 foraminal block gave no relief but the C4-5 block had not yet been done, and
(e)    3 May 2007 (letter to QBE) – the claimant had quite severe lower back pain with left sided sciatica and numbness of his left foot and pain involving his left thigh. There was a disc herniation close to the L4 nerve. Dr Kam noted the claimant was trying to obtain funds to pay for the surgery himself (he was not at that time a Medicare participant). Dr Kam also has a history that as a musician there is a lot of “lifting, bending and moving around which can be aggravating to his symptoms.”
[14] His letters start at page 370 of AD1.

In 2010 and 2011 the claimant saw Dr Elizabeth McCusker, neurologist and Dr Daniel Brooks, neurosurgeon.[15] There are several letters in relation to this period as follows:
(a)    on 2 September 2010, Dr McCusker wrote a lengthy letter to Dr Psarommatis. The claimant had attended with a history of low back pain dating to a car accident in 2005. The claimant reported shoulder numbness and mild lower back pain which on the following day became severe and he felt neck pain. He was seen by Dr Kam because of disc protrusions at L4/5 and L5/S1. She states “since that time, he has had persisting low back pain with radiation into the left leg including numbness of the toes and foot. He had cramping of his left leg and his leg gave way.” He was said to be “unwilling to have surgery.” Neck pain was also said to persist “and is sharp pain into the left.” He was taking Mobic. She adjusted his medication, suggested he continue swimming and referred him to Dr Kohan, neurosurgeon at Concord Hospital;
(b)    on 16 September 2010, there was left foraminal bulging seen on an MRI impinging on the L4 nerve root and an injection was suggested with referral to Dr Kohan, neurosurgeon regarding surgery, and
(c)    on 3 June 2011 the claimant was reviewed after a left L4/5 foraminal steroid injection had given good relief from his left foot symptoms, but his back pain was said to have persisted. Mr Oram was advised to have physiotherapy and swimming and was referred back to Dr Kohan for review.
[15] Dr McCusker’s records commence on page 398 of AD1.
Dr Psarommatis has provided his handwritten notes from 2003 to 2012[16] and the 2 October 2012 entry refers to, “low back pain and disc ? + [osteoarthritis] unchanged” and Mobic was prescribed.
[16] Page 363 of AD1.
Dr Kodsi’s electronic notes[17] commence with an attendance on 29 August 2013 for cough and fever. There were several consultations concerning a loss of sense of smell and in March 2016 the clamant attended with left knee pain on and off.
[17] Page 324 of AD2.

After the accident

The claimant attended Dr Kodsi on 22 May 2017 two days after the accident complaining of pain in the mid-thoracic area. There was a reference to migraine and tension headaches, radiology was requested and Imigran was prescribed (for the headaches).
The claimant returned on 5 June 2017 feeling lethargic and unwell over the last two days. There is no mention of the accident or any injuries. Further consultations occurred for general illness issues with no further mention of the accident or injuries until 28 July 2017 where the claimant attended for “chronic neck and lower back pain” and Mobic was prescribed. A further mention of the accident occurred on 10 November 2017 and further radiology was requested.
There is an entry on 8 October 2018 noting an MRI of the cervical and lumbar spine was requesting due to “exacerbation of neck and back pain from MVA on 5 May 2017, after another MVA on 7 October 2018.” A request was made to compare the scan with the previous scan. Another attendance occurred on 19 October 2018 and the claimant was again requested to have a CT scan of his lumbar spine due to “low back pain after MVA” on 7 October 2018.
The claimant attended in January 2019 complaining of right knee pain. There are no further electronic notes after 19 June 2019.
There are multiple references in the electronic notes to certificates of capacity being issued in respect of the workers compensation claim but very few references in the notes to symptoms, complaints or treatment being provided.
However, Dr Kodsi has also provided a set of handwritten notes separate and distinct from the electronic records which commence on 22 May 2017 and end on 6 November 2019.[18] These appear to be solely related to the accident as they do not contain references to any other general medical issues. They include the following:
[18] Pages 350-406 of AD2.
(a)    22 May 2017 has a history of a car accident five years before (the Panel notes that would be 2012) but no symptoms afterwards. He felt his body going forwards and backwards and had neck pain in both shoulders and back pain in both legs left worse than right;
(b)    there were 10 further attendances complaining of neck stiffness, headaches and back pain;
(c)    on 28 July 2017 the claimant complained of severe pain in his lower back after driving for 30 minutes and had to get out of the car and a referral was given to Precision Physiotherapy;
(d)    4 August 2017 – his mother in Lebanon was sick and he needed to go to see her. Dr Kodsi gave him advice about lifting heavy bags;
(e)    15 September 2017 – neck stiffness getting worse with headache all the time;
(f)    22 September 2017 – stressed with headache all day not sleeping well at night with back pain. He was to book in for physiotherapy;
(g)    29 September 2017 – feeling pain in neck and headaches and back stiff sitting for long periods of time;
(h)    6 October 2017 – neck stiff in the morning and back pain not going to the legs, and
(i)    16 October 2017 – went to the physiotherapist once.
On 20 October 2017 the claimant attended Dr Kodsi complaining of severe back pain after lifting at work and Mr Oram was given a week off work. On 24 November 2017 he lifted a 10kg box at work and again felt severe back pain.
The last entry refers to the claimant having casual work and feels pain in the lower back and felt numbness in the left leg all the time.
Dr Kodsi issued a certificate of capacity dated 29 September 2017 certifying the claimant was fit for his pre-injury hours.
Approval was given for physiotherapy and on 16 November 2017 the claimant was reporting less pain in his neck and he was sleeping better. His back pain was also reported as improving.
On 15 December 2017 the claimant was said to having weekly physiotherapy which was giving only temporary relief.
Throughout 2018 Dr Kodsi’s notes focus on the claimant’s lower back pain and left leg symptoms of pain and numbness. The claimant had his surgery and reported continuous symptoms. In 2019 the claimant attended multiple times with left sided lower back pain and ongoing symptoms.
Dr Kodsi provided a report to the insurer concerning the impact of the October 2018 accident on the claimant’s condition.[19] He confirms he saw the claimant first in 2013 at which stage he says the claimant had recovered from the previous (2005) accident. He said the October 2018 accident made the claimant’s condition worse but only for a short period of time and that Mr Oram still needed surgery.
[19] The letter is not dated by appears at page 359 of A1.
Physiotherapy records from Precision Physiotherapy have been provided and note the following:
(a)    the first treatment occurred on 5 October 2017 for lower left cervical spine, lumbar spine “ache” and left leg feels weak and collapses after walking more than 30 minutes. The claimant reported driving 9-10 hours a day;
(b)    a session on 9 October 2017 was cancelled;
(c)    at a treatment on 30 October 2017 he was said to be “going okay” and was still “working & driving 14 hour days” although his doctor was considering giving him a week off;
(d)    a session on 1 November 2017 was cancelled;
(e)    at treatment on 3 November 2017 the claimant reported he had a week off work;
(f)    treatment on 10 November 2017 includes a note that he can drive for ten minutes before he gets uncomfortable with a “tingling sensation in L big toe”, and
(g)    a session on 17 November 2017 was cancelled.
The clamant saw Dr Nair, spinal surgeon on 6 February 2018.[20] He has a history of a 2006 accident and that “symptoms resolved with analgesics and conservative management.” Dr Nair notes complaints of lower back and neck pain following an accident on 28 May 2017. The claimant complained only of lower back pain radiating into the left lower limb. The claimant had significant restriction in lumbar spine and cervical motion, positive straight leg raise but reflexes present. An MRI was requested.
[20] His notes commence at page 67 of AD2.
On 6 March 2018, Dr Nair advised Dr Kodsi that the claimant’s lumbar spine MRI showed an L3/4 disc herniation with foraminal narrowing. A corticosteroid injection was given which have a good but short-term response only. A flexion-extension MRI showed anterolisthesis of L4 on L5 with L4 nerve root contact. Surgery was advised.
Dr Nair further advised on 15 May 2018 in respect of L4/5 fusion surgery with Dr Abraszko. On 24 July 2018 he wrote to Dr Nair concerning L4/5 microdiscectomy surgery which was approved by the workers compensation insurer. On 4 September 2018 a letter to Dr Kodsi refers to L5/S1 microdiscectomy.
An operation report dated 29 October 2018 confirms a L4/5 left sided far lateral discectomy occurred. When seen on 27 November 2018 Dr Nair has a history of the claimant having some left lower extremity pain which he suspected was due to neural irritation. On 30 April 2019 the claimant was “travelling well” and his radicular symptoms had improved although there was some lower back pain. On 28 May 2019 the claimant’s lower limb symptoms were continuing to improve but there was still low back pain. There was a further attendance on 11 June 2019, but no further notes appear after that.

Medico-legal reports

Previous claim

Dr Noll on 1 May 2006 provided a report to NRMA the third party insurer of the previous at fault vehicle. The claimant complained of neck ache, headaches, lower back pain radiating into the left buttock and left thigh and that his left leg gives way every few days. Dr Noll reports on radiology of the time showing a “significant left sided disc protrusion at the L4/5 with nerve impingement.” Neurological examination revealed a loss of sensation over the medial aspect of the left foot, grade 4 weakness of the left big toe, right reflexes in the knee and ale were normal but the left knee reflex was absent. There was wasting of the thighs but not of the calves. Dr Noll assessed impairment at 10% (for the back).
Dr Lawson provided a report to the claimant’s solicitors dated 26 September 2006. He has a history of an intersection collision involving “a heavy impact with much car damage … the car engine was moved back into the front compartment of the vehicle on impact.” The claimant reported lower back pain radiating into the left lower limb, numbness in the left foot at the base of the big toe and that his left leg feels like it is stretched. He reviewed the scans and also commented on the encroachment of the disc onto the L4 nerve root. Dr Lawson assessed him at 24%

Claimant

Dr Carney provided a report to GIO (workers compensation insurer) on 7 June 2018.[21] Dr Carney declined to provide a WPI assessment on the basis the claimant’s injuries had not stabilised.
[21] Page 86 of AD2.
Dr Carney had a history of a 2006 accident and said Mr Oram had recovered within a year from injuries to the neck and lower back sustain in that accident.
The claimant said the current accident resulted in considerable damage and a bent chassis. The claimant reported terrible headaches, neck pain, back pain, left leg stretch and left big toe numbness.
Dr Carney noted the left sided L4/5 foraminal disc herniation found in the scan of February 2006 and suggested it may have resolved and then recurred in the current accident. Dr Carney diagnosed a cervical strain injury in addition. He supported the need for lumbar spine surgery on the basis the disc herniation was caused by the accident. He says the claimant was “vulnerable due to the previous far lateral prolapse at L4/5.”
Dr Carney provided a supplementary report dated 15 June 2018. He confirmed he had not seen the actual MRI images when he commented on the under reporting of the L4 disc prolapse. He also confirmed he was proceeding on the basis of the history that the claimant’s 2005 injury had resolved.
Dr Khan provided a report to the claimant’s solicitors dated 18 October 2019. He has a consistent history of the accident, injuries and early treatment. Dr Khan has a history of the 7 October 2018 accident and the return to the same state before that accident.
Dr Khan has a history of lumbosacral pain radiating to the left iliac crest and that the left leg symptoms have improved since the surgery. The clamant said there were no right leg symptoms and he has no record of any neck pain.
Dr Khan has a history of the 2005 accident, conservative treatment and recovery from symptoms after two years. The claimant said he was able to work for 10 years before the current car accident.
Dr Khan diagnosed a musculoligamentous injury with facet joint trauma in the cervicothoracic spine and a musculoligamentous injury with facet joint and disc trauma in the lumbosacral spine. He also diagnosed radiculopathy affecting the lower left limb, said that surgery was required, and the claimant had residual radiculopathy afterwards.
Dr Khan says the claimant completely recovered from the 2005 injury “and was able to function normally for more than 10 years.”
Dr Khan expressed an opinion about past and current treatment and foreshadowed L5/S1 surgery.
He expressed an opinion on WPI at 15% (10% for the back and 5% for the neck).
Dr Davis, occupational physician has provided a number of reports.[22]
[22] Commencing at page 107 of AD2.
In the first report dated 16 April 2018, Dr Davis has a history of an accident “in 2005/2006” and injury to the neck and back and “some associated left lower limb symptoms” however the claimant reported that “over time the symptoms experienced in this accident almost totally resolved.”
Dr Davis has a consistent history of the current accident and development of symptoms.
The claimant complained to Dr Davis of left sided neck pain with “needles” in the left trapezius, lower back pain which was consistent, a stretching sensation in the inner aspect of the left thigh, a numb left great toe and impaired function.
On examination there was tenderness and restricted movement in the neck, a full range of shoulder motion, tenderness and asymmetry of motion in the thoracic spine and tenderness in the lumbar spine with restricted motion.
Dr Davis appears to have had the previous and subsequent films.
He diagnosed cervical and lumbar disc injuries “with aggravation of pre-existing pathology” which had been “quiescent for an extended period prior to this motor traffic accident.” Dr Davis says there was no evidence of significant ongoing symptoms and that the claimant was able to work for up to 15 hours a day.
Dr Davis was of the view the past treatment had been appropriate, that the claimant was likely to require L3/4 surgery, ongoing medication, GP review, neurosurgical review and other therapies. He was of the view the claimant would continue to experience variable symptoms and required ongoing heavier domestic assistance.
In a supplementary report, Dr Davis assessed WPI at 15%.
Dr Davis re-examined the claimant and issued a further report dated 22 July 2020. He takes a record of constant left sided lower back pain and left neck pain with radiation into the left trapezius.
His diagnosis was of cervical disc injury with aggravation of asymptomatic pathology and lumbar disc injury with continuing radiculopathy. Dr Davis supported all the treatment in issue in the current proceedings, recommended referral to a pain management program and said the surgery was “entirely appropriate”. Whole person impairment continued to be assessed at 15%.
A third report was written on 15 March 2021 after Dr Davis was provided with the updated records including those of Dr McCusker and Dr Brooks. While he acknowledged the inaccurate history provided by the claimant, he said there was no evidence of any further symptoms or complaints after July 2011. The Panel notes Dr Davis has the records of Dr Psarommatis and noted continuing complaints to 29 July 2011, but he does not refer to the October 2012 entry for example.
A final report was written after a re-examination on 17 March 2022, at this examination the claimant was demonstrating a full range of right shoulder motion but restricted range of motion in the left shoulder equivalent to a 6% upper extremity impairment. Dr Davis attributed this shoulder impairment to “referred pain from his cervical trauma injury.”
Dr Fearnside, neurosurgeon provided a report to the claimant’s solicitors dated 10 February 2020.[23] He has a history of immediate pain in the neck and back after the accident but that the claimant kept on working.
[23] The insurer relies on this report which is found at page 320 of A1.
Dr Fearnside reports continuing neck symptoms without radicular pain or symptoms in his arms. The claimant’s main issue was stated to be lower back pain with left sided sciatic pain becoming worse.
Dr Fearnside notes the October 2018 surgery which led to no change in his condition but the development of spasms in his left thigh and calf.
The claimant reported the accident in 2005, said he had left sided sciatica and left arm symptoms but that after a year his symptoms resolved.
What appears to be a thorough medical examination was conducted. Dr Fearnside diagnosed an aggravation of cervical spondylosis and an aggravation of lumbar spondylosis causing left sciatic pain.
He assessed WPI at 15% (DRE I for the neck and DRE III for the back).

Insurer

The third-party insurer obtained a report from Dr Keller, occupational physician dated 12 December 2019. He has a history of the claimant commencing employment with Medlab in 2010 and working 60 hours a week.
He has a history of the accident and the immediate onset of neck and back pain and that he went home early that day and rested over the weekend. Mr Oram said he had a month off work and then went back to work without restriction, but he still had neck and back pain. His employment was terminated in February 2018.
Mr Oram reported having an L4/5 microdiscectomy which changed the nature of the pain but did not reduce it or resolve the pins and needles in his left foot.
The claimant told Dr Keller about the September 2005 accident with neck and back injuries. He said he was unfit for a year, fully recovered by the beginning of 2007 and received $100,000 in compensation.
Mr Oram complained of constant lower back pain, constant neck pain with pins and needles in the back of his neck but not his arms. He says his left leg feels weak and he has had six or seven collapses since his surgery.
The claimant says he has not worked since March 2018.
On examination the claimant walked with a limp.
Neck movements were full, unrestricted and rapid. There was no spasm and sensation in upper limbs and at the back of the neck was normal. Shoulders, elbows and wrists were normal.
In the lumbar spine there was some tenderness but no spasm or asymmetry of movement. There was mild wasting (1cm) of the thigh and calf but normal reflexes and power. There was reported impaired sensation.
Dr Keller noted that on 29 March 2007 the claimant had lumbar spine foraminal block with no relief of pain and a cervical spine block was mentioned suggesting that the claimant had not “fully recovered” by the beginning of 2007.
He reviewed the photographs and expressed the view no lasting musculoskeletal injury would have occurred. He assessed impairment at DRE I (0%) for the neck and DRE III (10%) for the lower back all of which he attributed to his prior condition.
Dr Keller provided a supplementary report dated 1 June 2020[24] following receipt of the property damage records and clinical notes from Dr Psarommatis. This did not change Dr Keller’s opinions.
[24] Page 238 of A1.
Dr Keller did an earning capacity assessment of the claimant on 23 February 2022.[25] The claimant did not limp but moved slowly and inconsistently and there was greater range of motion observed during informal observation than at the formal examination.
[25] The report dated 28 February 2022 is at page 240 of A1.
Dr Keller thought the claimant could work full time but not overtime and that he could work as a courier driver (which the claimant agreed with but for 20 hours a week only). He considered the claimant would require assistance with the heavier housework.

Dr Keller expressed the view the claimant needed no further treatment and that the previous lumbar spine degeneration and surgery would limit him from moderate to heavy labour.
Dr Breit, orthopaedic surgeon examined the claimant on 23 July 2020.[26] Dr Breit has a history of the 2005 accident. The claimant said he was off work for a year, his neck and back issues settled, and he settled the claim for $49,000. Dr Breit reviewed the radiology form November 2005 and September 2006 and noted “these are very significant degenerative changes”.
[26] His report dated 28 July 2023 is at page 257 of AD1.
Dr Breit had a history of the car accident, resting over the weekend and seeing his GP and having a month off work.
Dr Breit has a history of a third motor accident in October 2018. His daughter was driving the family car and they were run into from behind. Mr Oram said his symptoms worsened.
The claimant reported taking Mobic every night and Panadeine Forte when necessary.
The claimant complained of left-sided trapezial pain extending into the neck with frontal headaches but no arm pain or tingling and he could reach overhead.
The claimant complained of constant low back pain sometimes radiating to the right but mainly on the left. He had numbness most of the time over the medial aspect of the foot and a stretching sensation in the thigh.
Mr Oram told Dr Breit that his mother obtained a visa to come and assist him. She lives with him and does everything for him.
Dr Breit says, “there has never been a nexus between this motor vehicle accident and the requirement for this man to have spinal surgery.” He considered the work capacity restrictions excessive and that the claimant needed no future treatment but that it was reasonable to have assistance with bedmaking, vacuuming, cleaning floors and so on.
In his second report dated 24 January 2023[27] Dr Breit updates the history noting:
(a)    the claimant worked 3-4 hours in a car wash before ceasing work;
(b)    he tried delivering pizzas but was required to mop the floors and do the dishes and ceased, and
(c)    Mr Oram had further physiotherapy and is now taking Lyrica.
[27] Page 265 of AD1.
The claimant complained of low back pain on both sides, some pain from the thigh to the knee and numbness around the left big toe.
The claimant also complained of neck pain and pins and needles in the left trapezius to the mid humerus and he feels his radial aspect of the left forearm is swollen.
It would appear his mother has moved home, and his daughter is now living with him providing all of his assistance.
Dr Breit commented that “this man displays invalidism and inconsistency in an attempt to maximise his benefits and avoid work.” He again suggested the claimant could work and did not require further treatment.

Previous assessments

2005 accident

Medical Assessor March examined the claimant on 7 June 2007 for the purposes of certifying whether injuries had stabilised and if so the degree of whole person impairment arising from the claimant’s motor accident on 17 September 2005.
The claimant said his first symptoms after that accident were a burning pain in the left upper arm and pain in the back of the neck. He had some pain in his lower back. At the time of examination there was pain in the neck with no guarding and some restriction of movement but no neurological symptoms and a full range of shoulder motion. In the back, there was no guarding some pain and some restriction of movement. Straight leg raising was to 60 degrees in the right and 40 degrees in the left. There was some reduced sensation in the lower medical side of the left leg to the medical aspect of the left foot. There was no motor deficit and an absent left knee jerk. There was no wasting.
Medical Assessor March determined a whiplash type injury to the neck and lower back. He found a 0% WPI due to a DRE category I finding in the neck and a DRE category III in the back (10%) due to a left posterolateral disc protrusion at L4/5 compressing the left L4 nerve root which was displaced.

Current accident

Medical Assessor Gehr examined the claimant on 16 August 2018 as part of this claim and certified a lumbar spine soft tissue injury with L4 radiculopathy.
He had a history of the claimant being injured in 2006 and having “almost the same injuries … and it took him two years to recover.” Mr Oram remembered having treatment but could not remember the names of his treatment providers. He said “in the preceding weeks or months” before the accident he had no neck or back problems.
The claimant gave a consistent history of the accident and said that four or five days after the accident he developed pain in his neck and back. He told Dr Gehr he first saw his GP, Dr Kodsi four to four and half months later. The claimant said he had to wait for fear of losing his job and he took Panadol in the interim. The Panel notes Medical Assessor Gehr was not given a history of the attendance on Dr Kodsi two days after the accident.
The claimant said he had some physiotherapy and saw Dr Nair who planned on operating and he discussed this with his GP, Dr Milad.
Medical Assessor Gehr says the claimant was a poor historian.
On examination of the neck, there was no spasm, no guarding, no dysmetria and normal range of motion.
On examination of the lower back there was no spasm, guarding or dysmetria but there was restricted range of motion by over three quarters in all directions. There was a positive left nerve tension side, decreased power L5 on the left side, decreased sensation L4/5 distribution on the left side and a 2cm difference in circumference left verses right in the thigh. There was an absent left knee reflex but a reduced left ankle reflex (or absent on both sides).
Medical Assessor Gehr observed inconsistency in neck movement between informal observation and formal examination.
Medical Assessor Gehr found the claimant had sustained a soft tissue cervical spine injury but that after the first attendance on Dr Nair there was no further mention and no specific action taken in regard to neck pain. He found no radicular symptoms or signs of radiculopathy and found the claimant had recovered from this injury due to him moving his neck fully and freely during the history taking.
He considered the claimant also injured his lower back on the basis of consistent complaints with the GP. He noted the significant history of lower back and leg pain after the 2005 accident. He said he found evidence of a radiculopathy involving the left L4 nerve root due to a large L4/5 prolapse of L4/5 compressing the left L4 nerve root.
Medical Assessor Gehr noted the similarity in imaging and clinical findings from 2006 and 2018 but he accepted the claimant had no symptoms before the accident and a permanent impairment finding 12 years ago. He said:
“Chronic pain may vary over time but the reported radiculopathy (with sensory, motor deficit, absent reflexes, reduced muscle bulk) would most probably, according to the natural history of such deficit, have still been present at the time of the subject accident.”
The Medical Assessor refers to the GP’s notes and a handwritten entry referring to an earlier accident and a complete recovery. On that basis he found no pre-existing impairment and cited cl 1.31 of the Guidelines. He noted that the Guidelines referred to symptomatic permanent impairment and distinguished between signs of radiculopathy and symptoms of radiculopathy.
Medical Assessor Gehr noted the claimant had previously been assessed as DRE IV (20%) but assessed the claimant at DRE III which was 10% and deducted nothing for a previous impairment.

RE-EXAMINATION FINDINGS

Mr Oram is now 58 years old. He attended a re-examination with Medical Assessor Gibson on 28 July 2023. He was unaccompanied.

Past medical history

Mr Oram said he was involved in a motor vehicle accident on 17 September 2005. He said at the time he was working as a musician in the restaurant and on a working visa. He said he returned to work in the restaurant in late 2006 and worked there up until April / May 2008, when the restaurant closed down.
Mr Oram denied having been involved in any other significant accidents or injuries nor making any third party or any workers' compensation claims. In particular, he said that he had not suffered any other accidents before the subject accident. He added that he had been working long hours as a Medlab courier by the time of the subject accident.
He maintained that he had completely recovered (he said he was "perfect") from the injuries arising from the 2005 accident within a year of the accident. He said he had a single steroid injection and was given a rehabilitation program. He said he had received a payout of $49,000.
He was asked about Medical Assessor Marsh recording ongoing neck and back issues in his report of 7 June 2007 and finding a permanent whole person impairment. Mr Oram responded that he had a "very bad memory" and would sometimes forget where he had parked his car. When asked about Medical Assessor Marsh referring to his working hours at the time, Mr Oram could not recall saying he had only been working 2-3 hours on Saturdays. He felt he was working longer hours at that time.
Mr Oram was adamant his injuries from the September 2005 car accident had resolved within a year.
Medical Assessor Gibson asked him about the entry in the notes of Dr Psarommatis of Harris Park on 2 October 2012. He said he could not remember any issues with his neck and back at that time. He was asked about the reviews with Dr McCusker, neurologist, and Dr Brooks, neurosurgeon, between 2010 and 2011 and his statement of 9 February 2021. He did accept that he was having some symptoms at the time, but could not recall the details, and in any case, he felt that any symptoms he may have had at the time were "not that serious."
Medical Assessor Gibson attempted to clarify the situation before the current accident with regard to any treatment required. He said he rarely visited the general practitioner, and then chiefly for short term illnesses or for prescription of his cholesterol medication.

Past occupational history

Mr Oram had worked in construction and carpentry jobs and as a keyboard musician whilst living in Lebanon. He arrived in Australia on a working visa over 21 years ago. He had then worked as a keyboard musician in a restaurant for several years. Mr Oram agreed this work required bending, lifting and moving equipment around.
Mr Oram’s history of work was rather vague and he appeared unsure of many of the dates. He said after leaving work at the restaurant, he then worked as a packer on a full-time basis for three to four years. He conceded this work was heavy work and was one of the reasons he commenced working at Medlab.
Mr Oram said after settlement of his previous claim, he commenced work as a contract courier with Medlab. He was working 50-65 hours per week. He was terminated from this position on 24 February 2018.
Mr Oram said that he has been in receipt of the Centrelink benefits since the subject accident. He has struggled to find a job. He added that he felt forced to attend interviews, this was because he was required to apply for 15 jobs per month in order to obtain and then maintain his benefits.
He said he currently has a certificate from his GP restricting him to 15 hours work per week with lifting up to 5kg and a requirement for stretch breaks every 30-minutes.

History of the current accident

Mr Oram was the seat belted driver of a Toyota Yaris sedan. He was doing his “blood run” for Medlab, and it was a Saturday.
He said he had stopped to let another car into a parking spot, when he was hit from behind by another vehicle.
He remembered feeling a bang from behind, and he was then in shock for 5-10 seconds. He could not recall his body moving or making any direct impact with the inside of the car. There was no loss of consciousness. He said that he had "a little bit of pain" at the time, and he indicated that this had been over his lower cervical spine and across his low back. He added that he had not thought much of it at that time.
He contacted his supervisor. The damaged car was picked up and another vehicle supplied so Mr Oram could finish his blood run, which he did about an hour or so later.
Mr Oram said he visited his general practitioner Dr Kodsi on the Monday after the accident, and he was referred for some imaging. He said the doctor told him to rest for four weeks and gave him a medical certificate. He had taken the document to his supervisor and was told he would not get paid if he did not work. Mr Oram said that at the time he was supporting his mother overseas, so he reduced his hours to 35 hours per week rather than stopping work entirely. He added that his employer was "trying to get rid of me."
He said over the period from the accident to February 2018, when he was terminated from the job, he was working 35 hours a week but "pushing” himself to work.
He made a workers' compensation claim five months after the subject accident, on the instigation of his daughter. There is apparently an ongoing claim. He had also visited legal aid in relation to his status as a subcontractor, given his length of service with the same employer.

Family and social circumstances

At the time of the current accident, he was renting a bedroom in a share house, having separated from his wife in 2011. Therefore, he was only having to look after his own room and he had no other domestic responsibilities.
In 2018 he obtained a letter from his doctor supporting his mother’s application for a visa to come to Australia and care for him. She had initially stayed three months, but then the visa was extended to 2019 and then extended further due to the COVID epidemic. Mr Oram said that he and his mother moved into a two-bedroom unit in Merrylands in 2020. His mother eventually left Australia on 5 May 2021.
His 20-year-old daughter moved in with him about 18 months ago. He said she does "almost everything" around the house.
He said he walks for exercise as it makes his back feel better, over 30 minutes a day, although the walking worsens the neck pain. He is not currently swimming although he has been advised to do it.

Current presentation

Mr Oram takes a Mobic tablet a day. He takes up to six Panadeine Forte tablets a week. Occasionally, he takes Voltaren. He takes Lyrica tablets in the morning on and off for pain.
He says his GP said he should only take this medication for a few days at a time.
Mr Oram described midline neck pain which is present most of the time. He pointed to the C7 vertebra. He said there was tingling pain, and he indicated this as being over left trapezius and left deltoid. There were no other upper limb complaints.
There is pain across the low back. He said when he is walking this sometimes spreads to left buttock. He said there was a pulling feeling over the back of his left thigh. He said there had been numbness in his left foot "for ages." When asked how long, he said "from 2017."

CLINICAL EXAMINATION

Mr Oram was 168cm tall. He weighed 71kg. He was right-handed.
On examination of the cervical spine, there was full range of movements. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, arms measuring 26cm bilaterally above the elbow and the right forearm 25cm, left forearm 24cm. Upper limb reflexes, power and sensation were normal. There was no muscle wasting evidence in or around the shoulders.
On examination of the back, there was tenderness across the low back. Flexion and extension were reduced to half normal, lateral flexion was normal range on both sides and rotation was normal range bilaterally. There was no asymmetry, muscle spasm or guarding. Straight leg raise was 70 degrees on right and 40 degrees on left, the latter restricted by back pain and hamstring tightness.
On examination of the lower limbs, circumferential measurements were equal on both sides, 41cm in the thigh and 36cm in the calf. Knee jerks were reduced on the left and normal on the right and ankle jerks were present bilaterally and equal, but of low amplitude. There was reduced sensation over the lateral aspect of left calf, dorsum of the left foot and the sole of the left foot and there were variable sensory changes over the left thigh. There was reduced power of eversion left foot and left great toe dorsiflexion.

CONSIDERATION OF THE ISSUES

Preliminary observations

The matters in dispute between the parties include disputes about whether certain treatment is reasonable and necessary in the circumstances and whether certain treatment is related to the injuries caused the accident.
The Panel is of the view that it should approach the resolution of the various treatment disputes by determining:
(a)    what injuries were caused by the accident;
(b)    whether the disputed treatment is related to those injuries, and
(c)    whether the disputed treatment is reasonable and necessary in the circumstances.
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[28] where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents. The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to “the injury caused by the motor accident”.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery[29]. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[28] [2018] NSWSC 1710.
[29] Emphasis added.

Is the claimant’s evidence reliable?

Mr Oram told many doctors his first accident occurred in 2006 and not 2005. Dr Kodsi has a history of an accident five years before the 2017 accident (suggesting a 2012 accident). Mr Oram is reported to have told Medical Assessor Gehr that he did not go to the doctor for months after the accident and he told Dr Nair he had no radiating leg symptoms for two to three weeks after the accident.
Mr Oram has told most of the doctors who have examined him that his 2005 accident-related symptoms resolved within one year or two years. The claimant’s first statement says he recovered from the 2005 accident within two years or a little longer and said if he had symptoms after that, they were mild and he did not seek treatment for them. This history is clearly not correct on the basis of the records from 2010 to 2012. While the claimant referred to this period in his statement dated 9 February 2021 it remains a fact that he did not disclose it in his first statement or to the medical experts and assessors who have examined him before that.
Mr Oram told Medical Assessor Gibson that the back pain in 2010 and 2011 led to him changing jobs and he acknowledged the continued complaints and treatment to October 2012. This was clearly a significant episode in his medical history.
Mr Oram told Medical Assessor Gibson that he has a poor memory. That would appear to be the case. It is now six years since the current accident and nearly 12 years since his first accident. While the Panel does not expect the claimant to remember all the details of his medical condition since September 2005 it is significant to the Panel that the claimant did not volunteer the information he has subsequently conceded when the 2010-2012 records came to light.
Due to the claimant’s conceded poor member, the Panel will therefore prefer the documentary evidence over the oral evidence of Mr Oram.

What injuries were caused by the accident?

The mechanics of the accident

The Panel does not have the ability to test the evidence of the insured driver. The Panel cannot test the evidence of the biomechanical experts.
The Panel has concerns about the reliability of the claimant’s evidence and the claimant has given a statement which casts doubt on some of the insured’s evidence.
The biomechanical experts have provided reports with photographs from the insured of the damage to his vehicle but no photographs of the damage to the vehicle the claimant was driving. It is not clear whether they have both the property damage documents from both vehicles.
The Panel therefore has concerns about preferring one expert over the other.
The Panel notes however that the damage to both vehicles was not significant enough to prevent the cars being driven away, the airbags in neither vehicle went off, and the claimant did not call for emergency personnel at the scene and returned to work and kept working that day.

Cervical spine – neck

Mr Oram said that he injured his neck and low back in the subject accident and had developed some cramping of his left lower leg. The handwritten notes from Dr Kodsi, the medical certificate and the claimant document a cervical spine or neck injury and relatively regular complaints of neck pain in the records.
The medical members of the Panel accept that the claimant injured his neck in the accident on the basis of the consistent and early complaints.
The medical members of the Panel are of the view that the nature of the cervical spine or neck injury is one of soft tissue injury exacerbating pre-existing degenerative changes in the spine and from a previous injury.
The Panel notes that Dr Davis in his 16 April 2018 report has a history from the claimant with an injury to the neck and back in 2005 and that “over time the symptoms experienced in this accident almost totally resolved (emphasis added).” The claimant’s first statement acknowledges that he had symptoms in his neck before the accident associated with long hours in front of the computer.
When examined by Dr Davis in April 2018 and by Medical Assessor Gehr in August 2018 the claimant had no cervical spasm, guarding or dysmetria but restricted range of motion. Dr Khan in October 2019 des not record complaints of neck pain. When examined by Dr Keller in December 2019 the claimant’s neck movements were full unrestricted and rapid with no spasm or dysmetria. When examined by Dr Davis in July 2020 the claimant had spasm, tenderness and restricted range of neck movement. When examined by Medical Assessor Gibson on behalf of the Panel in July 2023, the claimant demonstrated a full range of movement with no muscle spasm or guarding. This pattern of symptomatology is reflective of a pre-existing degenerative condition which is exacerbated from time to time with activity.
It is the clinical judgment of the medical members of the Panel that any temporary worsening of the claimant’s pre-existing condition caused by the motor accident on 20 May 2017 has now ceased.
The Panel is not satisfied that the accident of 20 May 2017 resulting in any injury that at the time of the Panel assessment requires any further treatment.
Any treatment needs the claimant may have for his cervical spine is, in the view of the Panel caused by the claimant’s pre-existing condition and earlier 2005 significant injury.

Lower back

Mr Oram’s earlier accident of 17 September 2005 caused injuries to his lower back and a permanent whole person impairment assessment performed by Dr Nigel Marsh on 7 June 2007. This assessment found ongoing symptoms and signs consistent with radiculopathy in the left lower limb, so a 10% WPI was found due to the lumbar spine injury.
Mr Oram initially told Medical Assessor Gibson that his symptoms had totally resolved over a 12-month period. This was clearly inconsistent with the report of Medical Assessor Marsh and when challenged, Mr Oram had limited recollection of his reviews with Drs McCusker and Brooks. He then contended that he had no ongoing issues from the 2005 accident by the time of the subject accident and that he was “perfect” before the accident.
Mr Oram’s own statement suggests he continued to have occasional issues with his neck and back (with excess hours at his computer or if driving for long periods).
The claimant’s treating doctors had earlier recorded a significant disc herniation at L4/5. Dr Kam on 17 February 2006 expressed the view that it was unlikely the symptoms would recover spontaneously without intervention. An MRI of the lumbar spine showed tears of the posterior disc annuli at L4/5 and L5/S1 and a left sided foraminal disc protrusion.
The Panel notes left lower limb radiculopathy was clearly present in 2007. Medical Assessor Marsh had noted "I consider that there were clinical findings of radiculopathy involving a left L4 nerve root. There was loss of left knee reflex and sensory loss localised to the L4 dermatome in the left leg."
Dr McCusker in September 2010 reported on an MRI which showed a L4/5 disc bulge with impingement on the L4 nerve root. She also found radiculopathy “Reflexes were normal at the right knee and ankles, but the left knee jerk was absent even with reinforcement. Plantar responses were flexor. Sensation was reduced in the left foot in an L4/5 distribution.”
Dr Carney (who had the incorrect history of complete recovery from the 2005 accident) diagnosed radiculopathy on 7 June 2018 and supported the claimant’s surgery. Dr Fearnside on 10 February 2020 also found radiculopathy as follows:
“…. mild weakness of dorsiflexion of the left great toe and eversion of the left foot (4/5). Power was otherwise normal (5/5) in the lower limbs. …. His reflexes were difficult to elicit. Knee reflexes were normal. There was perhaps some mild decrease in the left ankle reflex which could be elicited, the right normal. Medial hamstring reflexes were symmetrically decreased.”
The radiology and reports from 2005 to 2011 confirm the presence of tears in the fibrous ligaments of the annular fibrosis at the L4/5 level and the herniation of matter from the nucleus pulposis. The claimant reported pain in October 2012 reported by his doctor as “chronic pain.”
The 2017 accident was relatively minor and particularly by comparison to the 2005 accident where the claimant reported his car was written off and the engine protruded into the cabin.
The Panel is of the view that the accident arising from the current accident was a soft tissue injury exacerbating pre-existing degenerative changes and a disc herniation caused by an earlier accident. It is the clinical judgment of the medical members of the Panel that the motor accident of May 2017 caused a temporary exacerbation of the pre-existing degenerative and 2005 related pathology and that this exacerbation has since ceased.
The records of the claimant’s GP record and the claimant’s own evidence identify worsening of symptoms while lifting at work and with activity and the exacerbation after another accident in October 2018. It is the clinical judgment of the medical members of the Panel that the significant accident and injury in 2005 has left some residual effect and that the normal course of events would have been episodes of back pain and restriction of which this accident is just one. The Panel is of the view that all of the exacerbations were temporary and a continuing manifestation of the original 2005 injury and that but for this accident, the claimant would have come to surgery and would have required some of the other forms of disputed treatment in any event.

What treatment is related to the injuries caused by the accident?

The medical members of the Panel are not of the view that domestic assistance from the date of the medical assessment and for the remainder of the claimant’s life expectancy is related to the soft tissue aggravation injury caused by the accident. Any need for domestic assistance in relation to heavy cleaning, gardening or home maintenance is, in the Panel’s view related to the L4/5 annulus tears and herniations caused by the accident.
The Panel is not of the view that the claimant requires any GP consultations from the date of the medical assessment and for the remainder of the claimant’s life expectancy for the soft tissue aggravation of his pre-accident condition. The claimant may experience further aggravations in the future which may require attention from his GP, but it is the clinical judgment of the medical members of the Panel that this is related to the pre-existing condition.
The claimant seeks analgesic and anti-inflammatory medication from the date of the medical assessment and for the remainder of the claimant’s life expectancy. The Medical Assessors are of the view that this is not related to the injuries sustained by the accident. The claimant may have required medication in the acute phase after the accident but any need for ongoing medication is related to the pre-existing condition.
The physiotherapy sessions that have been claimed from the date of the medical assessment and for the remainder of the claimant’s life expectancy are also not, in the Panel’s view related to the injuries caused by the accident. The need for any physiotherapy treatment beyond that which has already been provided is, in the medical members of the Panel’s view related to further aggravations of the underlying pre-existing condition.
Neurosurgical consultations have been claimed from the date of the medical assessment and for the remainder of the claimant’s life expectancy. It is the clinical judgment of the medical members of the Panel that the claimant has no accident related need to see a neurosurgeon. Any need to see a neurosurgeon due to the re-emergence of neurological symptoms would be related to the 2005 injury and not any temporary exacerbation of that injury.
It is not clear to the Panel what the “proposed lumbar spine decompression and fusion surgery” referred for assessment is. Mr Oram said no further surgery was planned and he had no intention to have any further surgery. It is the clinical judgment of the medical members of the Panel that the claimant does not require any further lumbar spine surgery to the L4/5 or any other level of his lumbar spine.
The parties have not specified the exercise program and exercise physiology that is proposed. The Panel has reviewed the notes of the Dr Kodsi and the physiotherapist from 2017 and it appears the claimant was provided with treatment which includes some form of exercise. The Panel is of the view that any further exercise physiology that may be required is not related to the claimant’s accident more than six years ago but to the underlying pre-existing medical condition.
The medical members of the Panel are of the view that gym and heated pool membership for one or two years after the medical assessment is not related to the injuries caused by the accident. The Panel is of the view that it would be beneficial for the claimant to exercise and improve his core strength and mobility but that is as a result of the 2005 accident and his degenerative spinal condition and not because of the injury caused by the current accident.

CONCLUSION

The Panel is not satisfied that any of the disputed treatment is related to the injuries sustained in the accident.
As the Panel has found the disputed treatment is not related to the injuries sustained in the accident, it follows that none of the treatment is reasonable and necessary in the circumstances.
As the Panel has come to a different outcome to Medical Assessor Machart it follows therefore that his certificate must be revoked, and a fresh certificate issued.

[2023] NSWPICMP 406

22 August 2023