AAI Limited t/as AAMI v Sabato

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Sabato [2023] NSWPICMP 285
CLAIMANT:	Angela Sabato
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	21 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment (surgery) by Medical Assessor (MA) Herald and insurer’s review under section 63; claimant passenger involved in intersection collision with impact to driver’s side; claimant alleged injury to neck and back; dispute arose as to whether cervical decompression surgery at C4/5 and C5/6 was related to the injuries caused by the accident and reasonable and necessary in the circumstances; previous car accident in 2003 with disc protrusions at C3/4 and C4/5 and surgery recommended; issue of causation; left arm symptoms developed 6 months after the accident then ceased and right arm symptoms developed 3 years after the accident; Held – claimant’s evidence unreliable due to time since accident; Panel satisfied claimant injured her neck which was soft tissue on a background of degenerative changes; right sided radicular symptoms not caused by the accident; as surgery is to treat those symptoms, the surgery is not related to the accident; AAI Limited t/as AAMI v Phillips followed; even if related, surgery not reasonable and necessary because no evidence of radiculopathy to warrant it, radiology does not support it, surgeon is not certain of the source of the claimant’s pain, compensation setting and claimant has said she does not want the surgery; Clampett v WorkCover Authority of NSW and Diab v NRMA Limited applied; surgery not allowed and certificate of MA Herald 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 Herald dated 14 December 2022. 2. Certifies that in accordance with s 58(1)(a), the proposed cervical spine surgery is not reasonable and necessary in the circumstances. 3. Certifies that in accordance with s 58(1)(b), the proposed cervical spine surgery is not related to the injuries caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

Angela Sabato was involved in a motor accident on 1 October 2014. She was a passenger in a car driven by her husband which was involved in a collision at an intersection. The collision was to the driver’s side of the car, and the claimant’s husband’s car was forced into a traffic pole.
The claimant says she injured her neck and back in the accident and she made a claim for damages against AAMI, the third-party insurer of the vehicle that she says caused the accident.
A medical dispute about surgical treatment has arisen in connection with that claim and Mrs Sabato referred that dispute to the Personal Injury Commission (the Commission) for assessment. A delegate of the President of the Commission allocated the proceedings to Medical Assessor Herald for him to conduct the assessment.
On 14 December 2022, Medical Assessor Herald determined the claimant’s cervical surgical treatment was related to the injuries sustained in 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 8 February 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 13 February 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Mrs Sabato’s claim for damages is governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act). That Act provides a scheme for the compulsory insurance of vehicles registered for use in New South Wales and a scheme of compensation and damages for those persons injured in motor accident occurring in New South Wales.
Section 83 of the MAC Act imposes upon insurers, throughout the life of a claim, a duty to make payments to, or on behalf of, the injured person for their treatment and rehabilitation expenses as incurred.
An insurer’s duty to pay for treatment and rehabilitation, extends to those payments that are verified, are reasonable and necessary in the circumstances and that relate to the injuries caused by the accident.
Damages for pecuniary or economic losses are determined in accordance with common law principles and include damages for past and future treatment and care (including gratuitous care) needs. When damages are assessed and all review and appeal rights concluded, the claim is finalised and the duty under s 83 is extinguished.

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,
(c)     (Repealed)
(d)     whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e)     (Repealed)”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment (such as Medical Assessor Herald’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.
A certificate of assessment issued by a Medical Assessor, or a Review Panel is conclusive evidence as to the matters certified in the assessment of the claim before the Court or the Commission.[2]
[2] Sections 61(2) and s 63(6) of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
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 Herald examined the claimant on 6 October 2022 and issued his certificate of assessment on 14 December 2022. He notes at [2] that he was asked to assess:
(a) whether the surgery - posterior cervical decompression at C4-5 and C5-6 with decompression of the right C5 and C6 nerve roots is causally related to the injury sustained in the subject accident, and
(b) whether the surgery – posterior cervical decompression at C4-5 and C5-6 with decompression of the right C5 and C6 nerve roots is reasonable and necessary in relation to the injury sustained in the motor accident.
Medical Assessor Herald had a history of Mrs Sabato’s previous car accident in 2003, several disc protrusions at C3/4 and 4/5, treatment recommended by Professor Van Gelder and pain management from Dr Manohar and Dr Rosenthal in 2004. The claimant conceded she had a previous problem but said she had recovered without surgery.
After the accident the claimant said she went to her general practitioner (GP) with chest and breast pain and a whiplash injury to her neck. After six months she went to see a neurosurgeon, Dr Jaeger and an MRI showed a disc prolapse at C5/6. The claimant was having radiculopathic symptoms in the left arm and a cortisone injection into the left side of the neck relieved her symptoms. Surgery was apparently suggested. The claimant then developed right arm symptoms with dizziness or vertigo and she saw

Dr Al-Kawaja in 2017 who advised conservative treatment. She saw a third neurosurgeon Dr Steel who repeated the MRI and recommended C5 and C6 nerve decompression surgery. Medical Assessor Herald notes that Dr Steel found it “difficult to be certain of the exact pain generator”.
The claimant’s current symptoms were reported as neck pain with intermittent radiculopathic symptoms in the right limb. The claimant was taking Lyrica and Panamax as required.
On examination there was tenderness over the spine and right paravertebral muscle region, asymmetric range of motion but normal tone, power and reflexes. While there may have been radiating pain, there were none of the five signs required by the Guidelines to establish radiculopathy for the purposes of whole person impairment. Symptoms appear to have been generalised and not consistent with an appropriate dermatome.
Medical Assessor Herald noted the presence of degenerative disease at the C5/6 level which had not been present before the accident and that there had been progression of degenerative changes at the level of C4/5. Medical Assessor Herald noted the progression of the claimant’s degenerative disease in the cervical spine which he considered had been aggravated by the accident.
He raised doubts about the prospects of surgery noting the claimant had radicular symptoms not radiculopathy and Dr Steel considered Mrs Sabato had C7 symptoms not C5 or C6 symptoms. He suggested an alternative path namely cortisone injections to properly identify the level of nerve root involvement and then radio-frequency procedures as part of a pain management program.
Medical Assessor Herald found the proposed surgery was related to the injuries caused by the accident. Despite his concerns, he also found the surgery was reasonable and necessary in the circumstances.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer’s submissions[3] are short and to the point. They say:
(a)    at paragraph 20 of his reasons the Medical Assessor says that the surgery is unlikely to provide any benefit to the claimant’s pain management [3];
(b)    the Medical Assessor says the claimant has radiculopathic symptoms but not radiculopathy [4] within the meaning in the Guidelines;
(c)    the claimant has had successful cortisone injections and the Medical Assessor suggests another and other treatment [5], and
(d) the Medical Assessor’s findings are contradictory because, having raised doubts about the surgery, the assessor concludes the surgery is reasonable and necessary [6].
[3] Dated 21 December 2022, identified as document A1 in the review proceedings.
The insurer provided brief additional submissions on 3 May 2023 noting Dr Bodel’s conclusion that the reason to have surgery would be because of clinical reasons and not to change the degree of an injured person’s permanent impairment. The insurer notes Dr Bodel does not comment on whether the proposed surgery would provide any benefit to Mrs Sabato’s pain management.

Claimant’s submissions

The claimant’s submissions[4] say:
[4] Dated 26 January 2023, identified as document R1 in the review proceedings.
(a)    the role of the Medical Assessor is to consider whether the surgery is related to the injuries caused by the accident and then determine whether it is reasonable and necessary [3];
(b)    the comments by the Medical Assessor as to the likelihood of success concern his recommendations to the claimant about whether she should have the related and reasonable and necessary treatment [4];
(c)
the claimant has already had extensive conservative treatment, but

Dr Steele is of the view she “will almost certainly require surgery” [5];
(d)    the surgery is necessary not just to alleviate the claimant’s pain but to address the “degenerative disease present at C5/6 level” [7], and
(e) the outcome of surgery is unknown until it is undertaken and therefore the comments by Medical Assessor Herald about the likelihood of success are not relevant to the need for surgery [8].
The claimant lodged further submissions,[5] with a copy of a report from Dr Bodel dated 31 January 2023. The claimant says at [2] that Dr Bodel:
(a)    is of the view the neck injury is a frank injury caused by the accident;
(b)    diagnoses a disc rupture in the neck and rotator cuff pathology in the shoulders, and
(c)    future treatment options include the surgery even though the claimant may not want it in the short term. It is still a possibility in the longer term.
[5] Dated 17 April 2023, found at document AD1 in the review proceedings.
The claimant says that it would be unreasonable to assess the surgery as not reasonable or necessary and “the claimant should still have the ability to claim the cost of the procedure particularly as it is a possible future indicated form of treatment which she will consider when the time is right” [3].

Procedural matters

On 16 February 2023, the Panel issued directions to the parties seeking the production of bundles noting there were 34 documents uploaded to the portal with confusion in the numbering of them. The insurer’s documents were due on 24 March 2023 and the claimant’s documents were due on 21 April 2023.
The parties did not comply with the directions and were reminded to do so on

1 May 2023. The insurer’s legal representative provided the insurer’s bundle of documents on 5 May 2023. The claimant had not provided her bundle of documents but did provide additional submissions and a report from Dr Bodel.
On 16 May 2023 the Panel met to discuss the proceedings and on 18 May 2023 reported to the parties.
In the report the Panel noted the claimant had not yet had the cervical spine surgery that was in dispute and drew the parties’ attention to the three cases of AAI Limited t/as AAMI v Phillips,[6] Clampett v WorkCover Authority of NSW,[7] and Diab v NRMA Ltd[8] which the Panel considered relevant to the matters in issue.
[6] [2018] NSWSC 1710 (Phillips).
[7] [2003] NSWCA 52 (Clampett).
[8] [2014] NSWWCCPD 2 (Diab).
The Panel called for the claimant’s bundle of documents by 26 May 2023 and any final submissions from both parties and advised the parties of the medical examination date.
No further submissions were provided by either party.
The claimant again failed to comply with the Panel’s direction for a bundle of documents and a message was relayed to the claimant extending the time for compliance to 1 June 2023.
The claimant’s legal representative provided the claimant’s bundle on 7 June 2023, four months after it was first requested, six days after the twice extended due date and five days after Mrs Sabato attended the re-examination with Medical Assessor Stubbs.
While the Panel has considered the documentation, it has delayed the finalisation of the matter. This behaviour is not in keeping with the guiding principle of the Commission or the duty imposed on the claimant and her solicitor to assist the Commission as set out in s 42(3) of the Personal Injury Commission Act 2020.

REVIEW OF THE EVIDENCE

The insurer has provided a bundle of documents comprising 670 pages.
The claimant has provided a bundle of documents comprising 271 pages. Many of these documents appear related to the assessment of the claimant’s damages. The claimant has also provided 150 pages of clinical notes from the claimant’s GP (incorrectly identified as clinical notes of Warrawong Physiotherapy) which the insurer has already provided.
The dispute before the Panel is one about the claimant’s surgical treatment recommended by Dr Steel. While the insurer has provided a copy of the letter rejecting approval for the surgery, neither party had provided in their bundles any documentation concerning the request for treatment and documents or reports from Dr Steel.
Upon receipt of the claimant’s bundle, and noting the omission of Dr Steel’s reports, the Panel has reviewed the entirety of the documents including those filed in the original proceedings and obtained access to the documents from Dr Steel.

2003 accident documents

The medical certificate[9] initiating this claim refers to an accident on 24 January 2003 and a “mild to moderate whiplash” neck injury with soft tissue injuries to the neck and back.
[9] Page 50 insurer’s bundle.
The claimant’s long-term GP, Dr Stanikic wrote a lengthy report to QBE on

10 May 2003. The doctor says the claimant first attended complaining of neck pain with extension to the back and down to her knees and pains in the middle of her chest. A month after the accident she attended again after five sessions of physiotherapy, and it appears her neck pain had improved but she continued to have lower back and mid back pain.
Dr Mills provided a medico-legal report to QBE on 18 January 2006.[10] He refers to a “widespread symptom complex” with non-organic factors and that Mrs Sabato was overstating her injuries and disabilities. The claimant had been injured in a rear end collision sustaining injuries to her neck and lower back and she was reported to be complaining of pain radiating into her upper and lower limbs which Dr Mills suggested was in a non-anatomic distribution.
[10] Page 64 of the insurer’s bundle.
In a subsequent report dated 6 February 2006,[11] Dr Mills refers to a “significant injury” but advised the claimant did not require domestic assistance at the present time due to her injuries.
[11] Page 60 of the insurer’s bundle.
There are reports from Dr Yuen (2006), Dr Day (2005), Dr Rivett (1995) and

Dr Moloney (1984) suggesting a long history of lower back pain and a fall in 1991 which appears to have led to litigation. There are also mentions in these reports of the claimant’s obesity. Neck pain is mentioned by Dr Day in connection with the 2003 accident.
Dr Jeni Saunders provided a report to the claimant’s solicitors in July 2004 advising that surgery for the lumbar spine was warranted and that the claimant would require domestic assistance and future therapy. She also says there were disc protrusions at C3/4 and C4/5:
“Although the risks of the cervical spine surgery may not outweigh the benefits, I still believe surgical opinion may be warranted.”
Dr Saunders assessed whole person impairment (WPI) at 15%.
Other documents suggest that Dr Manohar and Dr Van Gelder were involved in the claimant’s treatment in 2003 and 2004 including for back, neck and chest pain.

Claim form and claim documents

The claimant has provided 9 of the 11 pages of the claim form relevant to the current accident.[12] The Panel has not been provided with a copy of the declaration page and therefore is unaware of the date the claim form was signed. It bears a received date stamp from AAMI dated 4 May 2015.
[12] Page 1 of the claimant’s bundle.
The claimant denies [in section A] having made any claims for compensation before the current claim.
At question 22 she lists her injuries as:
(a)    neck radiated to shoulder and arm (left) whiplash;
(b)    breast lump (right), and
(c)    loss of front denture, crack bottom denture.
She indicates she has been having physiotherapy treatment from Mark Kesby at Warrawong.
At question 24 she denies having had any other injuries or illnesses before or after the accident to the same or similar parts of her body.
The claimant has included in her documents the request for the insurer to concede the 10% threshold and her submissions on damages for the claims assessment matter. She acknowledges in that document her previous accident (said to be in or around 2004) and that she had a permanent impairment in relation to it.
The claimant provided a statement dated 26 September 2017.[13] She says at [10] that she sustained an injury to her neck and a lump in her right breast as a result of the accident.
[13] Page 22 of the claimant’s bundle.

She details her accident which she believed was in 2004 and says that after the settlement was reached her neck gave her no ongoing pain [14]. The statement contains details of her treatment and disabilities and her reliance on her husband.
A further statement dated 18 September 2019[14] updates the position but does not add anything further to the Panel’s understanding of this treatment dispute. There is also a statement from the claimant’s husband about the care and assistance he has been providing since the accident.
[14] Page 29 of the claimant’s bundle.
The claimant’s solicitor wrote to the insurer’s solicitor on 14 December 2020 serving the notes of Dr Steel and requesting the insurer approve the surgery that is the subject of the dispute before the Commission.[15] The insurer’s solicitor’s letter communicating the insurer’s rejection of the request is dated 28 January 2021[16] and relies on the opinions of Dr Lee, Dr Casikar and Dr Davies.
[15] Document A22 in the Commission’s file associated with the original proceedings.
[16] Page 670 of the insurer’s bundle of documents.

Treating medical records and reports

Notes from Dr Thangavel[17] to 20 June 2013 have been provided. There are reports of knee pain in May 2012, lower back and knee pain in April 2011, mental health issues in 2010, low back pain in October 2009 (treated with physiotherapy) and out of control diabetes management with cardiac and respiratory issues. There is no evidence in these records as far as the Panel can see of any neck pain in the two or three years before the accident.
[17] Records from the Lakeside Medical Practice have been provided by both parties.
There is however a referral dated 17 April 2012 from Dr Thangavel to Warrawong physiotherapy for the claimant who was “complaining of pain and discomfort in her neck radiating to R arm and hand due to ?? OA”. On 12 May 2012[18] Mark Kesby reported on physiotherapy for the claimant’s lumbar spine but states that she attended “complaining of neck and right arm pain which had started in the hand and moved up the arm”.
[18] Page 187 of the insurer’s bundle.
Notes from Dr Jalota[19] from 2014 have been provided and they record the following post-accident consultations:
[19] The Warrawong accident and medical centre notes are found at page 386 of the insurer’s bundle.
(a)    1 October 2014 – “low velocity MCA driver front panel, driver’s airbag deployed both occupants self-extricated and walked away. Nil LOC / headaches / neck pain”;
(b)    2 October 2014 – MVA yesterday big bruise over the right breast. Slight tenderness over the C spine area. No distal neurology;
(c)    3 October 2014 – X-rays, no abnormality – no tingling or numbness in hands. Feeling a bit dizzy since the accident;
(d)    7 October 2014 – pain in the centre of the chest;
(e)    13 October 2014 – still has pain in the front of the chest and tender over the sternum;
(f)    21 October 2014 – review with ultrasound, haematoma where the seat belt was;
(g)    24 October 2014 – ultrasound showed haematoma, advised to wait and watch and repeat in four weeks;
(h)    15 December 2014 – cystic changes at the site of haematoma;
(i)    13 February 2015 - pain in the left shoulder with inability to abduct more than 90 for 1 week. Feels pain starting from the base of the neck and going down the left arm / feels heavy. Power and tone and reflexes normal;
(j)    19 February 2015 – still has pain in the left shoulder left arm feels heavy;
(k)    17 March 2015 – pain in the left shoulder has had a few visits to the physio not able to abduct the shoulder beyond 90 degrees;
(l)    20 March 2015 – seeks letter for insurance as per physio keen to get USS still not able to abduct shoulder beyond 90 degrees, and
(m)     27 March 2015 – ultrasound shows bursitis. “Still has pain in the shoulder and C spine with pins and needles for the last [three weeks]”.
The claimant reported falls in July 2015 (down steps), August 2015 (twisted knee and fell) and dizzy spells in April 2016 and July 2017.
There are negligible complaints of neck pain after March 2015. There are however significant concerns expressed in the notes about the claimant’s weight and diabetes management.
There is a report from a physiotherapist dated 16 March 2015 noting three attendances for neck and left shoulder symptoms. The claimant’s left shoulder was painful and stiff and the therapist queried whether an ultrasound and then steroid injection might assist. On 27 March 2015 he wrote advising the claimant’s left sided neck pain was a little better and rotation was returning.[20]
[20] Both reports are at page 642 and 643 of the insurer’s bundle.
Dr Jalota wrote to the claimant’s solicitor on 11 August 2020 saying that the claimant had tried all conservative methods of treatment such as physiotherapy, stretches and analgesia with little benefit;
“Mrs Sabato has been gradually getting worse. Her pain is there all the time and getting worse at night. The pain is radiating to the right upper shoulder and the right upper arm keeping her awake on most nights. She has now been referred to Dr Steel for review and possible surgery.”

Treating specialists

The first referral to Dr Jaeger is dated 20 April 2015[21] noting “pain in the left C spine area with radiation down the left upper arm. Recent MRI shows broad based disc herniation C4-6. Had MVA Oct 2104”.
[21] Page 68 of the claimant’s bundle.
Dr Jaeger wrote to the claimant’s GP on 2 June 2015.[22] He has a history of the immediate onset of left sided neck, shoulder and arm pain after the accident and that it has deteriorated. Mrs Sabato said she has a constant ache from the neck over the left shoulder and into the thumb area. She denied previous similar symptoms.
[22] Page 569, 571, and 573 of the insurer’s bundle.
There was weakness detected in the left shoulder abduction, decreased sensation in the C5 and C6 territories and left lateral flexion aggravated her pain. Dr Jaeger noted the deteriorating left C5 radicular symptoms, suggested an injection but considered surgery (anterior cervical discectomy and fusion) was likely.
A CT guided injection was undertaken at Dr Jaeger’s request on 15 June 2015 and the pain chart completed by the claimant after the accident reported a general decrease in her pain levels over a period of 21 days.
A further referral was given by Dr Jalota on 18 April 2018[23] for “ongoing radiculopathic pain with recent MRI confirming C5/6 impingement”. Dr Jaeger at that time requested a right shoulder ultrasound guided injection which was performed on 16 May 2018 with no complications.
[23] Page 49 of the claimant’s bundle.
The claimant’s GP referred the claimant to Dr Jaeger again on 6 June 2020. The referral[24] notes “worsening pain along the C5/6 dermatome on the right upper arm. The pain has been keeping her up at night”.
[24] Page 43 of the claimant’s bundle.
Dr Al Khawaja wrote to the claimant’s GP on 1 September 2017.[25] He has a history of the car accident with neck pain since then. He says, “In 2015 she had an episode of left sided radicular arm pain which resolved after a cortisone injection” and that she had no further radicular symptoms. She was complaining about dizziness and a referral for an MRI and bone scan was given.
[25] Page 558 of the insurer’s bundle.
On 18 September 2017[26] Dr Al Khawaja reviewed the MRI showing C4/5 facet arthropathy and a significant lesion at C5/6 impinging both nerve roots. The claimant was complaining of vertigo and dizziness and was being investigated. He then says:
“I told Mrs Sabato she has to come and see me immediately if she starts having arm problems or lower limb problems and stiffness and spasms or any numbness symptoms.”
[26] Page 554 of the insurer’s bundle.
This suggests to the Panel at that that time the claimant was not reporting any arm problems. The Panel notes that in neither of Dr Al Khawaja’s two letters does he suggest or recommend surgery.

Dr Steel

Dr Jalota referred the claimant to Dr Steel by way of a referral dated 12 June 2020.[27] It says:
“… ongoing [right] neck pain with radiation down the upper shoulder and lateral aspect of the [right] arm for the last six years. Affecting her sleep now. Was recommended surgery and would appreciate your opinion please.”
[27] The notes of Dr Steel are found in document A6 in the Commission’s electronic file relating to the original assessment proceedings.
In the new patient registration form completed by the claimant on 15 September 2020, she indicates on a pain diagram a line from the centre of her lower neck across the back and front of her right shoulder and down the back and front of her right arm. She says she has weakness in her hand and pins and needles in her neck and arm and down to her fingers.
On 18 September 2020, Dr Steel reported at length to Dr Jalota. He records a significant whiplash with possible C7 radicular pain and suggested “she will almost certainly require surgery”.
He has a history of neck pain immediately after the accident but that three months after the accident she developed radicular pain. He also has a history of the initial left arm symptoms “which responded to a cortisone injection” but that the right arm pain had not and has progressed. The claimant was reporting pain in her neck radiating down the right side to the arm and forearm to the middle three fingers.
Dr Steel refers to the April 2018 MRI and the June 2020 MRI.
On the basis that “symptoms have now been present for more than 5 years” he was of the view surgery was necessary but not urgent due to the absence of significant motor deficits. He noted “radicular pain” which was “severe” and sought an updated MRI scan and a bone scan. He expressed the view that a posterior cervical foraminotomy would be likely, subject to what the bone scan revealed.
The MRI undertaken at the request of Dr Steel on 21 September 2020 says:
“… multilevel spondylitic change is superimposed on a congenitally narrow canal. There is moderate / severe canal and bilateral foraminal stenosis at C4/5 and moderate canal narrowing at C5/6. No mechanical compression of the right C7 nerve root identified.”
A bone scan undertaken on 28 September 2020 at the request of Dr Steel reported:
“… mild anterior degenerative change at C4/5 and C5/6 but no significant active facet joint arthritis in the cervical spine. Mild degenerative changes noted in the mid thoracic spine.”
Upon receipt of the two scans Dr Steel changed his opinion about the anterior cervical discectomy and fusion and recommended a poster cervical decompression at C4-5 and C5-6 and decompression of the nerve roots.
He wrote again to Dr Jalota on 17 November 2020 confirming the claimant’s signs including pain radiating from the neck to the forearm and sensory disturbance in the middle three fingers which he notes is consistent with a C7 nerve irritation. On examination he noted “no clinical evidence of a myelopathy with normal reflexes” and that the MRI did not show cervical compression of the C7 nerve root. He says:
“It remains difficult to be certain as to the exact pain generator. There are only mild changes anteriorly at C4-5 and C5-6 on the bone scan. There is no active facet joint arthropathy.”
Dr Steel expressed the view that on the history provided to him, her current symptoms were a direct result of the car accident on 1 October 2014 and she had no neck symptoms or pain before the accident.
On 18 November 2020, he completed a booking form for St Vincent’s Private Hospital and on 11 December 2020 submitted a quote for $10,866.30 for his part of the surgery and $11,449 for the cost of the theatre fees and accommodation at the hospital.

Medico-legal reports

Dr Casikar (neurosurgeon) provided a report to the insurer dated 28 October 2015.[28] He assessed the claimant’s neck injury at DRE Category II (5%) reducing it by 10% for degenerative disease and he allowed 2% for the right breast injury.
[28] Page 358 of the insurer’s bundle.
He had a history of the claimant attending her GP after the accident with neck and right breast pain and that a week later she developed pain across the left shoulder and pins and needles. The claimant reported to him that after a cortisone injection from

Dr Jaeger her pins and needles in the left upper limb resolved but she still gets neck pain and pain in the left shoulder. She still complained of tender lumps in her right breast.
The claimant told Dr Casikar she was diabetic and had no previous history of neck pain.
Dr Casikar diagnosed a whiplash injury with aggravation of a pre-existing degenerative disease and said, “her persistent pain in the neck at this stage is predominantly due to the cervical spondylosis”.
Dr Davies neurosurgeon provided a report to the claimant’s solicitors dated

10 April 2018.[29] The claimant gave a consistent history of the accident and her treatment although she said she was referred for physiotherapy two weeks after the accident but that he could not find records of physiotherapy until March 2015, five months after the accidents.
[29] Page 368 of the insurer’s bundle.
Dr Davies noted the claimant’s left upper limb pain settled after Dr Jaeger’s cortisone injection and that she later developed symptoms in the right upper limb. Dr Davies said he could not find any mention of right limb symptoms and the claimant then said her right arms symptoms developed three to four months ago (this would be January 2018) and that as a result she has seen Dr Al Khawaja who recommended cervical fusion surgery.
He expressed the view that the GP’s notes revealed no mention of neck pain for four months after the accident and that complaints of left arm pain emerged. The onset of the right shoulder and arm symptoms more than three years after the accident “cannot reasonably [be] related to the accident”. He considered there was no impairment referable to the accident.
Mr Mangipudi (occupational therapist) provided a report to the claimant’s solicitors dated 28 May 2019[30] concerning the claimant’s care and assistance needs.
[30] Page 238 of the claimant’s bundle.
While the bulk of the report is not relevant to the matters before the Panel, his history includes these reports:
(a)    the claimant sustained neck, left shoulder and right breast injury;
(b)    cortisone treatment helped her manage her neck pain, but six months of physiotherapy did not;
(c)    the claimant has pain in her neck radiating into both shoulders with pins and needles in her left arm and fingers;
(d)    she has headaches and dizziness when bending and lying down since the accident, and
(e)    has stress and depression since the accident.
The claimant reported a car accident in 2004 injuring her neck and lower back but said she recovered but the current accident “aggravated the symptoms of pain in her neck”.
The pain chart completed by the claimant has pain indicated in the head, both shoulders, front and back along with numbness in both her hands.
Dr Lee occupational physician has provided a report to the insurer’s solicitors dated

20 February 2020.[31] He took this history:
(a)    no initial symptoms and she went to her usual medical centre and was told she would be OK;
(b)    the next morning, she was sore on the left side of her neck and her entire left arm with pins and needles in her left hand. She had an X-ray;
(c)    a week later she returned for a CT scan and had physiotherapy with “partial improvement”;
(d)    she had a cortisone injection with Dr Jaeger and said the pins and needles in her left upper limb had completely settled and her pain reduced;
(e)    sometime later she developed pain in the right side of her neck extending down her right upper limb with tingling in her fingers “she could not attribute this to any particular incident”, and
(f)    she says Dr Al Khawaja in 2017 wanted to operate, but she was not keen to do so had not returned.
[31] Page 296 of the insurer’s bundle.
Dr Lee took a history of current dull pain on both sides of the neck into the shoulders and down the limbs with the right side being worse than the left and with tingling in her right fingers intermittently. Three days ago, she developed tingling in her left hand.
The clamant said she was injured in 1989 in a fall and in 2004 in a car accident but that she recovered completely within a year.
Dr Lee diagnosed an aggravation of pre-existing degenerative cervical spine disease which fully resolved in mid-2015 on the basis the right upper limb symptoms commenced long after the accident.
Dr Lee provided a further report to the insurer’s solicitors dated 12 April 2021[32] which was a review of records, did not involve a re-examination of the claimant and does not assist the Panel further.
[32] Page 667 of the insurer’s bundle.
Dr Bodel[33] has a history from the claimant of an injury to the neck, left shoulder and a large haematoma in her right breast.
[33] His report is part of document AD1 in the Commission’s file.
The claimant told Dr Bodel she had severe pain immediately in the chest with bruising along the seatbelt line over the top of her left shoulder. She had neck and left shoulder girdle pain. He says she was given medication and physiotherapy and made progress but never completely recovered. He says, “She did have block injections in the cervical spine where were of temporary benefit only”.
He noted the referral to three neurosurgeons and records that they have all recommended surgery which she was reluctant to consider “and that is understandable”. He does not explain further.
He has a history of a 2004 accident and says that the symptoms settled over time and her claim settled. She reports continuing neck pain and shoulder pain in both shoulders with the right worse that the left and numbness and tingling in the right hand.
He says the treatment provided to date has been reasonable and necessary. He noted the decision of Medical Assessor Herald and notes the claimant is reluctant to consider the surgery.
He is of the view the claimant’s neck injury is a frank injury caused by the accident and that the claimant has bilateral shoulder girdle pathology which has been injured, aggravated, accelerated and exacerbated underlying degenerative changes.
He diagnosed a disc rupture. He notes if she had the surgery the claimant would progress to a DRE category III impairment which would be 15% but that it would be inappropriate to have the surgery in order to simply change the WPI outcome.
He assessed the claimant’s WPI at 15% being 5% for her neck and 5% for the right shoulder and 4% for the left.

Radiology

The insurer has provided a chronology of the claimant’s 25 radiology studies from both before and after the accident.[34] The claimant has not put in issue the correctness or otherwise of the insurer’s summary. The Panel does not intend to recite all the radiological findings but will be considering only those relevant to the cervical spine.
[34] Page 47 of the insurer’s bundle.
The claimant’s cervical spine was first studied on 4 February 2003 and there is a report of a congenitally fused C2 and C3 vertebra and “obliteration” of the C2/3 disc space.
An MRI of 20 October 2003 found broad-based disc protrusion at the C3/4 level and osteophyte formation at C4/5. No further studies were done of the claimant’s neck until after the accident
An X-ray of the spine was taken on 2 October 2014 (the day after the accident) showing nothing remarkable, on 13 February 2015 a further X-ray showed the congenital fusion at C2/3 but no evidence of significant encroachment of the neural foramina.
An MRI on 17 April 2015 showed large broad based disc bulges at C4 – C6 with nerve root impingement at C4/5.
Further MRIs showed degenerative changes and the congenitally narrow spinal canal.

Other assessments

Medical Assessor Rosenthal assessed the claimant in respect of her treatment needs and WPI arising out of the 2003 accident. On 22 September 2004 he determined that the claimant had sustained soft tissue injuries to her neck, lower back and chest, and that some of the treatment in dispute was reasonable and necessary and caused by the accident. He certified a resolved injury to the chest a DRE Category I (0%) for the neck and DRE Category II (5%) for the lower back.

Medical Assessor Kenna assessed the degree of the claimant’s WPI on 18 January 2019. He found Mrs Sabato has sustained a soft tissue injury to the cervical spine and a left shoulder which he assessed at 5% and 2% respectively.
In terms of the claimant’s neck injury, he found muscle guarding and dysmetria qualifying the claimant for a DRE Category II finding of 5%. He found no neurological abnormalities in the claimant’s upper limbs and radiculopathy was not present. Therefore, the claimant did not qualify for a DRE Category III finding which would have resulted in a WPI of 15%.
Medical Assessor Meares undertook an assessment of the claimant’s right breast injury on 29 April 2019 finding the claimant’s right breast haematoma with residual scarring did not result in a permanent impairment.

RE-EXAMINATION FINDINGS

The claimant attended a medical examination with Medical Assessor Stubbs in the Commission’s medical suites on 2 June 2023.

History provided by the claimant

Mrs Sabato is now 66 years old. She was born in Naples and came to Australia as a child. She completed her year 10 certificate and started a hairdressing apprenticeship. She married at age 17 and has three (now adult) children and six grandchildren. After the children started school, she worked for a short time as a clerk with the Italian Society. She last worked about 20 years ago.
Mrs Sabato lives in a two-storey four-bedroom home with a husband. Her husband no longer works. He received the disability support payment after the 2014 motor vehicle accident and at the age of 72, he now receives the age pension. He worked in the steel mills in Wollongong and more recently in a warehouse. He has poor health due to cardiomyopathy.
Mrs Sabato has mature-onset diabetes presently treated with an injectable agent which is not insulin. She also suffers from high blood pressure and high cholesterol. Together Mr and Mrs Sabato manage their own household without paid assistance.
Mrs Sabato says she was involved in a previous motor accident in 2004. When asked about the material which suggested the accident was in January 2003, she said she was certain that the accident was not until 2004. The claim settled sometime in the mid 2000’s for about $40,000 she could not be sure precisely when. She said the claim was for injuries to her neck and back and pain in her right leg.
She said that after her settlement she had no further neck and back pain until after the 1 October 2014 motor accident. She was asked but did not remember reporting right hand pain spreading into her upper arm to her GP in 2012 or having physiotherapy for her neck in 2012.
She said that on the day of the current accident she was the front seat passenger in a Ford Falcon sedan just moving off on a green light. A car struck the driver’s side door, and the car was later repaired. She did not lose consciousness was shaken by the accident but said she was not at that stage in any great pain. Police and ambulance attended the scene of the accident and the ambulance officers suggested she see her usual medical officer for follow-up.
Mrs Sabato did go to her usual medical practice and saw one of doctors there that evening. She woke the following morning with a great deal of pain and stiffness about her neck and shoulders and saw her usual GP, Dr Jalota the following morning. A large bruise developed across her right breast in the following days. She had physiotherapy and a CT scan.
Mrs Sabato says she was then referred to Dr Al Khawaja (neurosurgeon) because she had developed pins and needles and weakness on the left arm which he thought arose from the neck. She had an image guided injection into the left side of her neck, which did not give her any benefit. She said she has had several follow-up imaging studies of her cervical spine since the accident.
Mrs Sabato said she then saw Dr Davis (neurosurgeon) and he gave her another injection into the left side of her neck.
Mrs Sabato was asked about the fact that she was now complaining of right-sided neck pain with paraesthesia and pain in the right hand. She said she thought that both sides of her neck and shoulders were painful at the beginning, but she was not sure and could not clearly recollect when the right sided tingling and numbness became the most troublesome symptom or when the left sided symptoms had abated.
Mrs Sabato has not had the surgery recommended by her doctors for her condition. Though she says the symptoms are distressing she is afraid that the surgery will make her neck and arm pain worse.

Physical examination

Mrs Sabato was 157 cm tall and weighed 89 kg this is a BMI of 36.1 which is in the obese range.
The claimant travelled to the examination from Wollongong by herself.
She had a normal gait pattern and moved freely around the examination room. She could tip toe and heel toe walk a little unsteadily and stand one leg on either foot. Trendelenburg sign was negative. Her spinal balance was generally good though she does have prominent thoracic kyphosis with compensatory cervical lordosis. She could dress and undress without assistance and climbed on and off the examination couch without assistance.
She could not perform a sit up but had no trouble getting her head and shoulders clear of the pillow when lying on the examination bed.
She was consistent and cooperative in the clinical examination.

Cervical spine

She pointed to an area of tenderness on the right side of the neck involving the trapezius and spreading to the point of the right shoulder. She was tender with gentle pressure in this region but does not show spasm or guarding. The left side of the neck and shoulder were not tender at all on gentle palpation.
Cervical movements were as follows:
(a)    flexion / extension – reduced by one half;
(b)    rotation to the right and rotation to the left – reduced by one half on both sides, and
(c)    lateral flexion to the right and left – reduced by one half on both sides.
There was therefore no dysmetria present.
Traction signs were negative in the cervical spine, the Valsalva manoeuvre was negative, and compression does not increase the pain. Girth of the upper limbs was equal in both limbs at the forearm and upper arm. The tendon reflexes were symmetrical but difficult to elicit. There was no wasting or atrophy present in any of the muscles of the upper limbs.
Sensation was reported as impaired in the thumb and more especially middle and index fingers on the right side. Two-point discrimination was marginally reduced. She had a positive carpal tunnel compression test on the right that came on immediately with wrist flexion. Release phenomena was noted when the wrist is extended, and there is a strongly positive Tinel’s sign. There is a moderate release phenomena when carpal tunnel is compression on the left, but sensation is normal over the median innovated fingers on this hand. Sensation in the other dermatomal regions is normal on both sides. All of these findings indicate Mrs Sabato may have right carpal tunnel syndrome. The Panel notes there are no nerve conduction studies in evidence before the Panel.

Upper limbs

There was consistent reproducible active shoulder movement on standing. The range of motion was generally the same on both sides as follows:
(a)    flexion right and left - 140 degrees (normal 180 degrees);
(b)    extension (normal 50 degrees);
(i)right   20 degrees, and
(ii)left     30 degrees;
(c)    abduction right and left -140 degrees - (normal 180 degrees);
(d)    adduction right and left - 40 degrees - (normal 50 degrees);
(e)    internal rotation right and left – 60 degrees (normal 90 degrees), and
(f)    external rotation right and left – 60 degrees (normal 90 degrees).
Forward flexion and extension was limited by the thoracic kyphosis. Notably though, Ms Sabato had functionally limited internal rotation. With her hands behind her back on the right-hand side, she cannot clear her buttock on the right, but she could on the left where her internal rotation is to the low thoracic level. She reports that her husband does her bra up for her.
Elbows on both sides have full extension to better than 130° of flexion. Pronation, and supination were normal on both sides. There was 60° of wrist extension and flexion in each wrist noting that wrist flexion is uncomfortable on the right (limited by the production of carpal tunnel compression).
Movements of the thumb and all the fingers of both hands were full. There was no wasting or weakness in the interosseous of the left hand however the right thenar eminence was softer and slightly more wasted than the left and abduction of the right thumb was weaker than the left. The T1 innovated interosseous musculature is normal in both hands. Two-point discrimination was blunted on the right.

Lumbar spine

Mrs Sabato’s forward flexion showed she could reach her fingertips to the upper shins and on side bending to the knees. Truncal rotation (including thoracic rotation) was equally reduced on both sides to about three quarters normal range.
There was no guarding or spasm with mild tenderness the small of the back. Neurological examination of the lower limbs was normal. Muscle power is 5/5, straight leg raising was 60° on both sides with a negative traction sign and there was 90° of knee extension when sitting. Hip flexion was beyond 120°. The knees go from full extension two 30° of knee flexion. Girth of the thigh and the calves were equal between the two sides. Ankles and feet were normal but there is a mild planovalgus flat-footed deformity standing which corrects when she rises on tiptoe. Sensory mapping of the lower limbs was normal and nerve root traction signs are negative and the reflexes are symmetrical but difficult to elicit due to the claimant’s body habitus. Babinski signs were negative.

Radiology examined

Mrs Sabato brought with her a series of MRIs of her cervical spine performed over a number of years which were reviewed by Medical Assessor Stubbs in conjunction with their reports.
The most recent MRI was done at St Vincent’s Medical Imaging on 21 September 2020 at the request of Dr Steel. There was also an Illawarra radiology MRI of 11 September 2017 and 17 April 2015 Ulladulla Imaging MRI of 8 October 2014.
The imaging studies have changed very little over the seven-year interval. There is a congenital C2/C3 fusion. They show age-related cervical degeneration spread out uniformly through the cervical spine with the typical more marked changes at the lowest two levels. There are no changes suggestive of recent injury. The discs bulge but are not herniated or prolapsed. The nuclear signal is diminished and there is minor facet joint hypertrophy. The nerve roots seemed generally clear in the intervertebral foramina.
In terms of plain X-rays, there was an Ulladulla Imaging 8 October 2014 standing chest X-ray, a Wollongong District Hospital 13 February 2015 cervical spine and left shoulder X-ray and an Illawarra Imaging plain X-ray of the thoracic spine dated May 2018.
The chest X-ray shows a longer gradual thoracic kyphosis with multiple disc-based narrowing and anterior osteophyte consistent with adolescent Scheuermann’s disease. The axillary plane view of the chest shows a well-balanced minor scoliosis convex to the right and mid thoracic level, also a feature of Scheuermann’s disease. The X-ray of the left shoulder is normal. The X-ray of the cervical spine was unremarkable, it shows age-related degenerative changes.
There is mention of an MRI of the cervical spine in the accompanying documentation from 2003, but this was not included in the imaging studies brought to the examination although Mrs Sabato believes she has in her possession all the imaging taken of her spine and did not recall scans from 2003 (or the accident which she though occurred in 2004).
Medical Assessor Stubbs reports there is nothing in the radiology that indicates a need for cervical surgery.

CONSIDERATION OF THE ISSUES

Mrs Sabato is in dispute with AAMI about whether certain treatment and care is related to her injuries and reasonable and necessary in the circumstances. The surgery in question is cervical decompression at C4-5 and C5-6 for a right-sided C5/C6 radiculopathy.
The Panel notes that s 58(1) of the MAC Act provides a Medical Assessor and this Panel with power to determine a dispute about “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances”. Mrs Sabato has told both Dr Bodel and Medical Assessor Stubbs that she does not want to have the surgery that is the subject of the dispute, and she has explained this is because she is frightened it will make her condition worse. On one view of this dispute then, there is no dispute at all about “treatment … to be provided” because there is no current plan to have the treatment.
The claimant’s solicitor submits that the claimant should have the ability to claim the cost of the procedure. The Panel notes the claimant was the applicant in the original proceedings and that the claimant does have the ability to claim the cost of the procedure as part of her damages claim (discounted for the chance that she may not have it) without having to prosecute a medical dispute through the Commission.

Whose evidence do we accept?

The claimant’s evidence about events has been clouded over time which is to be expected. For example, she was adamant her earlier accident occurred in 2004 when the documentation (including the claim form) confirms it occurred in 2003. The claimant did not remember seeing a doctor or physiotherapist for neck pain in 2012.
The claimant has given different histories as to the onset of the left sided radicular symptoms. Left shoulder and arms symptoms are first recorded in the GP notes on

13 February 2015. Both Dr Al Khafaja and Dr Jaeger have a history of these starting three or four months after the accident which is consistent with the GP notes.

Dr Casikar was given a history of radicular symptoms commencing a week after the accident, Dr Lee has a history of these symptoms starting the day after the accident,

Dr Bodel has a history of immediate neck and left shoulder girdle pain.
Mrs Sabato could not recall when her left sided symptoms after the accident ceased and when the symptoms in her right side commenced.
The claimant gave no history of attending Dr Jaeger or Dr Steel when she gave her history of treatment received to Medical Assessor Stubbs.
Mrs Sabato appears to be confused about some details for example she told Medical Assessor Stubbs that Dr Davies gave her injections when Dr Davies is a medico-legal expert and not a treating practitioner.
The Panel does not expect Mrs Sabato to remember everything that has happened in the nearly nine years since the accident or the precise order of events and medical treatment she has had. The Panel will rely on the medical records for much of the details about her treatment.

What injury did Mrs Sabato sustain in the accident?

An insurer will not be liable to pay damages for treatment expenses, if the treatment in dispute does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine the injuries caused by the accident before determining whether the treatment relates to those injuries.
The Panel is satisfied that the claimant sustained an injury to her neck. She attended upon her GP on the day of the accident and the day after the accident complaining of neck tenderness and pain (and the bruise over the chest where the seat belt had been). Noting the mechanism of the impact and the fact the airbag deployed, the Panel is satisfied the claimant could have and did sustain a whiplash type injury.
The Panel is satisfied that the claimant also sustained an injury to her right shoulder where the seat belt had been and where she had developed a bruise. It was this bruise that was the focus of much of GP’s attention during October and into December 2014.
The nature of the cervical spine injury is a soft tissue injury to neck on a background of degenerative changes which had been rendered symptomatic in a 2003 motor vehicle accident and resulted in a previous permanent impairment and symptoms present in 2005 and 2006 and complained of in 2012.
The Panel is not of the view that any significant cervical spine spinal pathology was caused by the accident noting that the claimant sustained C3/4 and C4/5 disc bulges in her 2003 accident and there were, at that time, already degenerative changes showing in her spine. Twenty years has passed since that accident and in that time the claimant has aged and in the clinical judgment of the Panel, further degeneration has occurred.
The Panel notes the onset of left sided radicular symptoms were first reported in February / March 2015 and right shoulder symptoms reported to Drs Davies, Jalota and Jaeger in April 2018. While the Panel is prepared to accept the soft tissue injury to the claimant’s cervical spine could have led to the left sided radicular symptoms, the Panel notes these were treated with injections and resolved according to Dr Al Khawaja’s history. It is the clinical judgment of the medical members of the Panel that the right sided symptoms commenced at a point in time too remote to the accident to have been plausibly caused in the accident. If the claimant did sustain a cervical disc bulge causing impingement of a nerve root on the right, that would have been evident immediately after the accident or within weeks or months, not years.

Is the planned surgery related to those injuries?

The Panel notes the decision of AAI Limited t/as AAMI v Phillips[35] where the test of causation of surgical treatment was considered. That was 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[36]. 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.”
[35] [2018] NSWSC 1710.
[36] Emphasis added.
Mrs Sabato’s initial presentation was for left-sided neck pain and left arm and hand pain. This is the situation seen by Dr Al Khawaja in 2017. He arranged for a perineural injection, and he reports that the claimant’s left-hand symptoms abated. Dr Jaeger in early 2018 noted that Mrs Sabato had recently developed right-sided symptoms. While Dr Jaeger expressed the view the claimant may require cervical surgery, Dr Al Khawaja did not. Dr Davies saw the claimant in April 2018, and he also reported right upper limb symptoms and the claimant told him this began three or months before (which would be January 2018).
Medical Assessor Kenna saw Mrs Sabato in December 2018 at which stage

Mrs Sabato demonstrated no signs of radiculopathy. But she did complain of neck pain referred to the left shoulder and “the right shoulder was unaffected”. In February 2020 when seen by Dr Lee, the claimant had a dull pain in both sides of her neck extending down both arms with tingling in her right-hand fingers and three days ago symptoms in her left hand had re-emerged. When first seen by Dr Steel in September 2020 the claimant was complaining of right arm pain in a C7 distribution.
Dr Bodel appears to support the surgery on the basis that all three of the neurosurgeons who have examined the claimant have suggested it. He does not greatly engage with the issue of causation and gives no reasons for his opinions.

It is unclear whether any of the treating specialists have had the correct history in particular the records of back pain dating back to 1984 and necks symptoms from 2003. Dr Steel expresses a view on causation of the need for surgery without the previous history and it would appear without the documentation including medico-legal reports and the previous treating specialists’ reports.
The Panel does not accept the opinion of Dr Steel and is of the view that the proposed surgery being a decompression of the right sided C5 and C6 nerve roots is not related to the accident. Any right sided radicular symptoms did not emerge until early 2018 some three and a half years after the accident and as the Panel has found above, it is not medically plausible that these symptoms are related to the injury sustained in the

1 October 2014 accident.
The need for Dr Steel’s surgery aimed at addressing those right sided radicular symptoms is not therefore caused by the accident.

Is the planned surgery reasonable and necessary in the circumstances?

While the Panel has found no causal connection between the accident and the need for the proposed surgery, for completeness the Panel will consider whether the surgery is reasonable and necessary in the circumstances.
In order for the claimant to recover damages for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. This test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in the case of Clampett Grove J stated:
“[22] I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
[23] The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone.”
In considering whether the proposed surgery is necessary, the Panel is of the view it is not indispensable or cannot be done without because the claimant has not, in the nearly three years since Dr Steel proposed it, had the surgery. While the insurer has refused to pay for it, the claimant would have had available to her through the public waiting list for surgery paid for by the Medicare scheme.
In Diab at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a)     the appropriateness of the treatment in dispute;
(b)     the availability of alternative treatment;
(c)     the cost effectiveness of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the appropriateness of the treatment.
The medical members of the Panel are of the view that in their clinical judgment, the cervical spine surgery is not appropriate because:
(a)    primarily Mrs Sabato has no evidence of proximal cervical radiculopathy which would warrant it. The claimant has had no objective neurological signs demonstrated at any of the medical assessments or examinations since the accident;
(b)    Medical Assessor Stubbs reviewed the radiology and the Panel has considered there is nothing in the radiology report that supports a need for cervical surgery;
(c)    Dr Steel is uncertain of the source of the claimant’s pain, while he initially considered there was a C7 radiculopathy he now suggests it is elsewhere;
(d)    the claimant has reported pain in her neck and arm that she says distresses he, however spinal surgery is not appropriate in this case for pain relief. It is unlikely that in a compensation setting with no objective findings of radiculopathy that surgery, usually performed to relieve symptoms of radiculopathy, would be effective in alleviating Mrs Sabato’s pain, and
(e)    there is strong evidence to suggest that Mrs Sabato has right carpal tunnel compression causing her right arm and hand symptoms. Nerve root decompression surgery will not address those symptoms.
The Panel notes that the claimant’s radicular symptoms have varied from left to right sided symptoms and while a left sided injection appear to have resolved the claimant’s left sided symptoms however it is not clear whether the claimant has had any right sided neural injections. There is therefore other treatment possibly available to her.
The cost of the treatment is likely to be in excess of $22,000 based on the 2020 estimates which is significant. The Panel notes the claimant’s submissions suggest the likely benefit of the treatment is immaterial. The Panel disagrees. The potential effectiveness of the treatment must be considered as part of the overall evaluation of the reasonableness of the treatment in a scheme of compulsory insurance and in the light of the Diab decision.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant in the proceedings before the Panel. In that respect the fact that the claimant does not want the surgery is relevant.

CONCLUSION

The Panel is of the view that Mrs Sabato’s posterior cervical decompression surgery at C4-5 and C5-6 including decompression of the right C5 and C6 nerve roots, as proposed by Dr Steel, is not related to the injuries caused by the 1 October 2014 accident and is not reasonable and necessary in the circumstances.
As the Panel has come to a different view to Medical Assessor Herald, it follows that the Panel must revoke his certificate.

[2023] NSWPICMP 285

21 June 2023