AAI Limited t/as AAMI v Shoyeb

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Shoyeb [2025] NSWPICMP 122
CLAIMANT:	G M Shoyeb
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Les Barnsley
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	26 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claim for three updated or repeat MRIs; Medical Assessor (MA) determined the treatment was related to the injuries sustained in the accident and was reasonable and necessary in the circumstances; claimant injured in motor accident on 26 November 2021; sustained fractured left wrist; Review Panel satisfied soft tissue injuries to neck, lower back, and right knee; claimant had three MRIs in January (cervical and lumbar spine) and March 2022 (right knee); orthopaedic surgeon advised conservate treatment of neck and back and MRI of right knee was completely normal; claimant complained of worsening pain in October/November 2023 but no new symptoms; insurer’s medico legal had history of resolving lower back and knee pain and claimant’s medico legal had no report of knee pain and intermittent back pain; Held – Review Panel determined not to re-examine claimant and determined the dispute on the papers; section 42 of the Personal Injury Commission Act 2020 referred to and Sydney Trains v Batshon distinguished; Review Panel satisfied treatment in dispute related to injuries resulting from the accident but not satisfied treatment was reasonable and necessary in the circumstances; Rose v Health Commission NSW, Clampett v Workcover Authority (NSW), Moorebank Recyclers Pty Limited v Tanlane Pty Limited, and Diab v NRMA referred to; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Shahzad dated 11 September 2024. 2. Certifies that the MRI scans requested of the claimant’s cervical spine, lumbar spine and right knee are related to the injuries resulting from the motor accident on 26 November 2021 but are not reasonable and necessary in the circumstances. A statement setting out the Review Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Mr Shoyeb was involved in a motor accident on 26 November 2021.
Mr Shoyeb says he injured his neck, back and right knee in the accident and made a claim for statutory benefits with AAMI, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about treatment (MRI scans for the neck, back and right knee) has arisen in connection with that claim and Mr Shoyeb referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 11 September 2024, Medical Assessor Shahzad determined that Mr Shoyeb’s requested treatment related to the injuries caused by the motor 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. The claimant did not lodge a reply to that application.
On 21 November 2024, Ms Gupta, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 27 November 2024 the President’s delegate convened this Review Panel (Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Shoyeb’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Unlike the previous scheme,[2] damages for treatment and care cannot be recovered by the claimant against the insurer. The only mechanism for the claimant to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim.
[2] Under the Motor Accident Compensation Act 1999.
Section 3.24(1) establishes the entitlement to treatment and care expenses as follows:
“An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(a)the reasonable cost of treatment and care,”
Section 3.24(1) also permits recovery of expenses for the reasonable and necessary cost of transport and accommodation for the injured person to enable them to access treatment. If the claimant is a minor or requires a carer then the travel and accommodation expenses incurred by a parent or carer will also be met by the scheme.
However, the entitlement to claim expenses is accompanied by some restrictions and limitations. For example: no statutory benefits are payable for care if the care is provided gratuitously (s 3.25); no statutory benefits are payable if the expenses are not properly verified (s 3.27) and, no statutory benefits are payable beyond the first 52 weeks after the accident if the claimant is wholly or mostly at fault or if the claimant only has threshold injuries (s 3.28). Mr Shoyeb having sustained a fractured wrist has non-threshold injury and an entitlement to ongoing benefits.
Section 3.24(2) also provides that:
“No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

Dispute resolution

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b):
“…whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 …”.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shahzad’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Applications for review of a medical assessment under s 7.25 of the MAI 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 an “appeal” and 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

The Medical Assessor examined the claimant on 8 August 2024 and issued his certificate on 11 September 2024. The Medical Assessor confirms at [2][4] that he was asked to assess the following:
[4] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
(a)    Cervical spine:
(i)whether an MRI scan for the claimant’s cervical spine by MRINow radiology, relates to the injury caused by the motor accident, and
(ii)whether the MRI scan for the cervical spine is reasonable and necessary in the circumstances
(b)    Lumbar spine:
(i)whether an MRI scan for the claimant’s lumbar spine by MRINow radiology, relates to the injury caused by the motor accident, and
(ii)whether the MRI scan for the lumbar spine is reasonable and necessary in the circumstances.
(b)    Right knee:
(i)whether the MRI for the claimant’s right knee by MRINow radiology, relates to the injury caused by the motor accident, and
(ii)whether the MRI for the right knee is reasonable and necessary in the circumstances.
The Medical Assessor at [3] and [4] summarises the submissions of both parties and at [5] lists the documents provided.
The claimant’s history includes him coming to Australia in 2015 and undertaking a Masters degree of Project Management at Central Queensland University. The claimant has worked since 2015 restocking shelves at Woolworths.
The claimant gave a history of the accident, airbags deploying and a loss of consciousness with police and ambulance attending.
The claimant had a fractured left wrist with nerve damage. The claimant developed lower back, neck and shoulder pain.
Medical Assessor Shahzad records that Dr Lim, general practitioner (GP) referred the claimant for an MRI on the neck and lower back on 11 January 2022 and on 11 March 2022 he referred the claimant for an MRI of the right knee. Both of these imaging studies were done.
Medical Assessor Shahzad says the claimant had surgery in July 2022 to remove the hardware in his wrist and on 9 January 2023 he was diagnosed with Chronic Regional Pain Syndrome (CRPS) and was referred to a pain specialist.
Medical Assessor Shahzad notes that Dr Siddiqui, GP (in practice with Dr Lim) referred the claimant on 31 October 2023 for further MRIs of the right knee and lower back due to worsening symptoms.
Dr Deshpande, pain specialist had seen the claimant on 30 October 2023, and on 31 October 2023 had requested approval for a pain management plan in respect of the claimant’s wrist. On 28 November 2023 she saw the claimant again and supported the approval of MRIs of the lumbar spine, cervical spine and right knee. It is this treatment that is the subject of the dispute.
Medical Assessor Shazad notes at [12] the claimant’s current symptoms include right sided neck pain, back pain and right knee pain. The claimant had pins and needles in his left hand and electric shock like pain over the right thigh and he had severe right knee pain with pins needles and numbness in his feet.
The claimant was 35 years of age, 177cm tall and weighed 87kg. He had an antalgic gait and was unable to demonstrate much movement.
In his cervical spine there was guarding and limited but symmetrical range of motion in the neck. There are no neurological deficits recorded.
In the lower back there was muscle guarding, dysmetria in the flexion extension plane and symmetrical range of motion in other planes. There were no neurological deficits recorded.
In the right knee there was muscle guarding and significant restriction in right knee movements compared to the left.
Medical Assessor Shahzad noted that the claimant had no pre-existing injuries or conditions and that he developed neck, lower back and knee pain after the accident which had worsened by the time he saw Dr Deshpande. Therefore, the radiology requested was related to the injuries caused by the accident. Medical Assessor Shahzad determined it was reasonable for the claimant to have the treatment in dispute due to his ongoing symptoms and to ensure accurate diagnosis and appropriate treatment.
The Medical Assessor also stated:
“The delay in pursuing treatment has likely exacerbated Mr Shoyeb’s symptoms, affecting his overall recovery. This delay may be considered a deprivation of his rights under Section 3.24 of the Act, which mandates timely access to necessary medical treatments. Therefore, an MRI scan of the lumbar spine, cervical spine and right is reasonable and necessary given the circumstances.”

ISSUES FOR DETERMINATION

Insurer’s submissions[5]

[5] The numbers in square brackets are a reference to the paragraph number in the submissions.

The insurer says that while the Medical Assessor has summarised the insurer’s submissions, the Medical Assessor has not engaged with them and has not dealt with the insurer’s argument that the claimant had scans in 2022, that other practitioners have not requested updated scans, and that Dr Deshpande does not refer to the original radiology suggesting she never had access to the original scans.
The insurer refers to “incorrect and unreasonable criticism of the insurer” by the Medical Assessor.

Claimant’s submissions

The claimant did not file submissions in response to the insurer’s application for review.

Procedural matters

On 10 December 2024 the Panel issued directions to the parties. The Panel noted the claimant had filed no submissions. The Panel pointed out that we did not have access to the original application for medical assessment file and that all documents to be relied upon by the parties needed to be provided to the Panel by way of a bundle of documents uploaded to the case management system.
The Panel requested answers to the following questions in time for the Panel’s first teleconference:
(a)    Have the three MRI scans requested over a year ago been obtained?
(b)    If they have been performed, who paid for them?
(c)    Has Dr Siddiqui been provided with copies of the reports of the MRIs from January and March 2022 or otherwise been made aware of the existence of this radiology?
(d)    Has Dr Deshpande been provided with copies of the reports of the MRIs from January and March 2022 or otherwise been made aware of the existence of this radiology?
The parties were directed to provide bundles of documents to the Panel.
The Panel understands there is a dispute about permanent impairment currently before the Commission.

Parties’ responses

The claimant responded to the Panel’s query advising:
(a)    the claimant has not had the three MRI scans;
(b)    it is assumed Dr Siddiqui has been provided with the January and March 2022 radiology as he has referenced them in his notes of 31 October 2023, and
(c)    the claimant is not aware of whether Dr Deshpande was provided with the previous MRIs or otherwise made aware of the reports.
The claimant provided a bundle of documents of 325 pages. The claimant did not provide a copy of his submissions lodged with the original application for medical assessment. The claimant did not provide updated records and reports from Dr Deshpande.
The insurer provided a bundle of documents comprising 233 pages.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claim form was signed and declared as correct on 23 December 2021. Mr Shoyeb denies any previous claims and says he was not suffering from any injury or illness at the time of the accident.
The claimant says he sustained a fracture of his left wrist and sustained injuries to his shoulder lower back, neck and suffers from internal pain and shock.
He says he was taken to Bankstown Hospital and discharged on 30 November 2021.
The claimant has provided a statement in support of his claim for damages. He says he passed out after the impact and when he came to, he was aware of pain in his wrist.
He describes his pre-accident life his work and how the injuries have affected him. He has signed the statement as true and correct.

Treating medical records and reports

The ambulance report notes the claimant was “alert and oriented” and that his airbags had deployed, and the claimant was wearing a seat belt. He was said to have self-extricated. The claimant was talking in full sentences. It is recorded:
“NIL head strike. NIL loss of consciousness. NIL trauma to head.”
The claimant denied headache, dizziness or light-headedness. The claimant was able to walk to the ambulance.
The discharge summary from Bankstown/Lidcombe Hospital noted the left wrist fracture and a possible renal or uretic injury due to dark coloured urine. The claimant was discharged to be reviewed by his GP in three days, have a follow up renal ultrasound in three months if necessary, two-week review of the fracture and Mr Shoyeb was given cast care instructions.
The remainder of the note records “?Loss of Consciousness for few seconds”, extricated by passers by and walked and complaints of left arm and neck pain. His neck showed a full range of motion and there were no neurological signs reported.
In a subsequent progress note the claimant recalls 10-15 seconds loss of consciousness and some amnesia to events. The pain problems however were left shoulder and arm pain. Cervical, thoracic and lumbar spine were said to be “non-tender with normal movement in all directions.”
The claimant attended Dr Lim of the Workers Doctors. The Panel has been provided with the notes from this practice. There are a number of GPs in the practice, specialists and allied health providers including psychologists and physiotherapists. All of these practitioners record their notes in a single source. There is significant duplication in the notes in that excerpts (or all) details of previous consultations are copied and pasted into subsequent or later notes.
The Dr Lim wrote to AAMI on 21 December 2021 after an initial consultation on 16 December 2021.[6] Dr Lim records in this report:
[6] Page 46 of the insurer’s bundle.
(a)    the claimant’s “current employment” and salary (between $50,000 and $100,000) per year;
(b)    his employment and education history;
(c)    the injuries in the accident were neck, shoulder, wrist, back and “psych”;
(d)    including the history of the claimant having not washed since he left hospital the month earlier;
(e)    diagnoses of “? head trauma”, cervical spine strain, left shoulder strain, left distal radius fracture (with open reduction and internal fixation), lumbar spine strain “renal ureteric injury”; intermittent haematuria and acute stress disorder;
(f)    the circumstances of the accident and that the car was written off;
(g)    the claimant lost consciousness and was taken to Bankstown and had surgery;
(h)    disturbed sleep due to pain, mood swings and is easily frustrated;
(i)    issues with the colour of his urine and a burning sensation to urinate;
(j)    the claimant’s past medical history notes his GP as Dr Hassan and that he was previously well with no pre-existing injuries reported;
(k)    the claimant reported pain in all of the injured body parts and said it was too painful to shower;
(l)    his management plan was for pain management, modified activities, simple analgesics and Endone if required;
(m)     Dr Lim recommended physiotherapy (referral to Bankstown Liberty), psychology (referral to Insightful Minds), orthopaedic review and review by a spinal surgeon (referral to Dr Chien) and he wrote a referral for MRIs of the cervical spine and lumbar spine, Ceretec brain perfusion and an X-ray of the left wrist;
(n)    the claimant required care and assistance as he had not showered since leaving the hospital three weeks previously and had difficulties with the household chores.
On 11 January 2022 the claimant had an MRI of his cervical and lumbar spine which included the following findings:[7]
(a)    at C3/4 a “very minor dorsal broad-based disc bulge with mild foraminal narrowing … possible mild irritation of the left C4 nerve”;
(b)    at C6/7 a “mild circumferential disc bulge and mild foraminal narrowing … no convincing features of nerve impingement”;
(c)    at L4/5 there was “mild disc desiccation and otherwise unremarkable”, and
(d)    L5/S1 there was a “dorsal disc protrusion with a maximum AP dimension of 8mm and base of 15mm mildly indenting the central aspect of the thecal sac at this level” however no nerve impingement was seen. There was no abnormal marrow signal, no fracture and no paraspinal mass or lesion.
[7] The first page of the report relevant only to the cervical spine is at page 53 of the insurer’s bundle both pages are found at page 33 of the claimant’s bundle.

The claimant saw a psychologist at Dr Lim’s practice on 20 January 2022.
On 20 January 2022, Dr Calvache-Rubio (of Dr Lim’s practice) referred the claimant to Dr Khong (also in Dr Lim’s practice) for “persistent neck and back pain post MVA” and a copy of the MRI was attached.
Dr Calvache-Rubio saw the claimant on 3 March 2022. The claimant said he was more functional, had been able to go outside and had started to walk over the last few weeks and had noticed right knee medical pain on the joint line.
On 4 March 2022, Dr Khong reported to Dr Calvache-Rubio.[8] He has a history of the possible loss of consciousness, the fractured left wrist and that after one to two weeks after returning home he realised he had neck and back pain (he had been taking Endone). He had left sided neck pain radiating sometimes to the left arm with no numbness, pins and needles or tingling. He had some left sided lower back pain with radiating to the left buttock and hip but no numbness, pins and needs or tingling in the lower limbs.
[8] Page 50 of the insurer’s bundle.
The claimant told Dr Khong of some previous neck pain in 2018 whilst at work, that he had physiotherapy and his symptoms improved. The lower back pain was said to be improving with no radicular leg pain but right knee pain.
Dr Khong noted the MRI reports of the January neck and lower back. He diagnosed musculoligamentous strain and exacerbation of pre-existing degenerative changes in the neck and a musculo-ligamentous strain and acute L5/S1 disc herniation and annular tear in the lower back.
Dr Khong recommended the claimant continue with physiotherapy and made no arrangements to see him again.
On 11 March 2022 the claimant had an MRI of the right knee due to “recurrent right-sided medical knee pain post motor vehicle accident.” The report[9] says:
[9] Page 54 of the insurer’s bundle.
(a)    patellofemoral articular cartilage was normal;
(b)    medical and lateral patellar was normal;
(c)    quadriceps and patellar tendons were normal;
(d)    anterior and posterior cruciate ligaments are normal;
(e)    medical and lateral menisci are normal;
(f)    medial and lateral collateral ligaments and popliteus tendon are normal;
(g)    medical and lateral compartment articular cartilage was normal;
(h)    small to moderate sized knee joint effusion;
(i)    no evidence of a baker’s cyst, and
(j)    visualised muscles about the right knee were normal.
On 6 May 2022 Dr Khong reported to Dr Calvache-Rubio.[10] Much of the report is copied from the previous report. The Panel notes while this report suggests a consultation occurred at 10.00am on Friday, 6 May 2022, the report documents the video conference on 4 March 2022. It contains no new information and does not for example refer to the right knee MRI report.
[10] Page 37 of the claimant’s bundle.
The corresponding clinical note repeats the 6 May 2022 refers to the MRI of the cervical spine, notes the absence of neural compression, continues to recommend non-operative management with physiotherapy. There is no reference to neck complaints or right knee complaints in the clinical note.
On 8 September 2022 the psychologist noted the claimant’s neck pain was improving with physiotherapy. The claimant’s injured wrist continued to be a source of problems.
The claimant has provided a copy of a letter from Dr Lim to AAMI dated 14 October 2022. In many ways this is similar to his previous report. Dr Lim has updated the diagnoses, recording head trauma, cervical spine strain (with disc bulging at C3/4 and C7 and C4 nerve irritation), left shoulder strain, left distal radius fracture, nerve damage, CRPS, lumbar spine strain (including L5/S1 protrusion) and renal or ureteric injury and a post-traumatic stress disorder.
Dr Lim makes the same recommendations as previously, that is that the claimant modify his activities and have pain management, see a physiotherapist, psychologist, orthopaedic surgeon and neurosurgeon.
Dr Lim repeats which he said in his earlier report that, over one year since leaving hospital the claimant has not showered.
Dr Lim says:
“It is clear from your questions that you are only concerned with returning him to work and do not understand the severity of his current condiction … Mr Shoyeb has requested that you cease services, as he feels inadequately supported.”
Dr Lim says Mr Shoyeb requires assistance at home, queries the insurer’s request to have him undertake an English course and states: “he will unlikely ever return to work within his education, training and experience.” Dr Lim refers to the claimant’s psychological injuries, medication, post-traumatic stress disorder and CRPS.
On 31 January 2023 the claimant was referred to Dr Deshpande anaesthetist and interventional pain specialist by Dr Lim in respect of “ongoing pain and has CRPS.” The referral notes the claimant’s medications but does not mention the 2022 radiology. Dr Deshpande’s letterhead suggests she practices at a different address to Dr Lim and Dr Khong.
Dr Deshpande, wrote to Dr Mo (in practice with Dr Lim) on 30 October 2023.[11] Her provisional diagnosis was of a left hand CRPS with adjustment disorder. She noted also right knee pain, lumbar and cervical axial pain, moderate physical disability with major depressive disorder, adjustment disorder and financial stressors. She advised the claimant to continue psychological treatment and physiotherapy exercises.
[11] Dr Deshpande’s reports and requests commence at page 34 of the insurer’s bundle. The referral is at page 52.
On 31 October 2023 Dr Deshpande wrote to AAMI seeking four follow up consultations with a plan for improvement of the claimant’s left wrist symptoms and recommended that the claimant should have further psychological treatment.
Dr Siddiqui (in practice with Dr Lim) completed the referral for an MRI of the claimant’s right knee on 31 October 2023. The radiology was requested due to “worsening right knee from altered gait post MVA. Needs updated imaging.”
Dr Siddiqui’s referral for the MRI of the lumbar spine dated 31 October 2023 was due to “worsening back pain with radicular symptoms from MVA. Needs updated imaging.”
On 28 November 2023, Dr Deshpande wrote to Dr Mo again noting the claimant was “distressed, depressed and unwell”. In addition to his wrist symptoms, Dr Deshapnde noted ongoing knee and lumbar spine issues and on 28 November 2023 she asked the insurer to approve, lumbar spine, cervical spine and right knee MRIs “to investigate and formulate the diagnosis for ongoing right knee pain and axial pain that has been worsening.”
Dr Tawdros (also in practice with Dr Lim) referred the claimant for an MRI of his lumbar spine on the basis of “worsening low back pain with R sided symptoms – previous MVA. For updated imaging.”

Medico-legal reports

Dr Wallace, orthopaedic surgeon provided a report to the insurer dated 15 May 2023.[12] Dr Wallace has a history of a loss of consciousness and admission to hospital for five days. The claimant reported intermittent aching pain at the C5, C6 and C7 region with no radiating pain into the shoulders or arms. There were reports of numbness and weakness in the left arm and stiffness at his cervical spine. The claimant reported no current pain in the lumbar area or symptoms in his lower limbs.
[12] Page 55 of the insurer’s bundle.
Dr Wallace diagnoses a cervical strain of the cervical spine and lumbar spine and an intra articular fracture of the left wrist. The Panel notes there were no complaints of right knee pain recorded.
Dr Wallace considered the claimant would benefit from a home exercise program and simple analgesics. He was of the view physiotherapy was not required and three-monthly reviews with the GP for a year.
The insurer relies on a report from Dr McMahon, psychologist dated 31 May 2023.[13] Mr Shoyeb reported pain in his left hand and upper limb, pain in his neck, lower back which was intermittent and constant right knee pain. He said he was taught exercises but did not do them. He caught an Uber to the assessment because he says he cannot drive due to left wrist and lower back pain.
[13] Page 67 of the insurer’s bundle.
Dr McMahon administered the following tests:
(a) the test of memory malingering and noted the claimant’s pattern of responding “was consistent with suboptimal effort and efforts to appear overly symptomatic”;
(b) personality assessment inventory which “has good reliability and validity.” There were significant elevation of somatization, anxiety-related disorder, depression, paranoid features, schizophrenia, borderline features and stress.
Dr MacMahon notes the contents of the ambulance report which suggests no head injury and no concussive disorder. He notes the report of Dr Erev, psychiatrist who took a history of auditory hallucinations.
He says:
“Given the feigning spectrum behaviour determected psycometrically on examination and the doubt this casts on Mr Hoyeb’s pattern of self-report, the reported symptoms and disability are unlikely to represent the objective symtoms.”
The insurer also relies on a report from Dr Mitchell, occupational physician dated 5 December 2023.[14]
[14] Page 83 of the insurer’s bundle.
The claimant gave a history of the accident, that he “may have lost consciousness momentarily” and that he developed pain in the neck, shoulders and left wrist as a result. The claimant reported anxiety, flashbacks, low mood and “auditory hallucinations.”
The claimant gave a history of his treatment and removal of hardware and that he developed left shoulder pain and stiffness and right knee pain.
Dr Mitchell had a history of an earlier “minor” motor accident in 2020 or 2021 caused by the claimant’s fault.
Dr Mitchell records neck pain, lower back pain, left wrist pain and pain in the right knee.
While Dr Mitchell accepted the claimant’s injuries he expressed concern at the degree of the claimant’s residual symptoms. He assessed WPI at 3%.
The claimant relies on a report from Dr Bodel, orthopaedic surgeon dated 15 March 2024.[15]
[15] Page 13 of the claimant’s bundle.
Dr Bodel has a report of the claimant’s injuries suggesting that the claimant sustained a head injury, lower back and right knee injury in the accident all of which were treated in hospital.
Dr Bodel lists the current symptoms and complaints noting pain in the left wrist and hand, neck pan, left shoulder and arm pain with intermittent lower back pain. The Panel notes there is no complaint of right knee pain in this part of Dr Bodel’s report.
The claimant is said to be under the care of a pain specialist. The claimant was said to be not driving because of his pain and struggling with household maintenance and cleaning activities.
Dr Bodel diagnosed a fractured radius, rotator cuff injury, soft tissue injuries to the neck and lower back with neuropathic pain and CRPS which is resolving.
Dr Bodel considered the treatment to date appropriate and says he needs further conservative care with rest analgesics medication and exercise and Mr Shoyeb should continue to see the pain specialist.
Dr Bodel expresses the opinion the claimant has 20% whole person impairment (WPI) on the basis of:
(a)    left upper extremity (10% for the shoulder, 8 % for the left wrist and 4% for the left shoulder = 20% upper extremity impairment which equals 12% WPI);
(b)    neck – 5%, and
(c)    lower back 5%.
Dr Bodel did not assess any impairment in the right knee or lower limb.

CONSIDERATION OF THE ISSUES

How shoulder the Review proceed?

The Court of Appeal said in Sydney Trains v Batshon:[16]
“[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the ‘Review Panel Practice Note 3/2005’, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review ‘is not limited to a review only of that aspect of the assessment that is alleged to be incorrect’, but rather ‘is to be by way of a new assessment of all the matters with which the medical assessment is concerned’: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
[16] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Batshon concerned a medical dispute in the workers compensation scheme about the degree of an injured worker’s WPI. The case does not mandate a re-examination in every motor accident case but talks of the “default position” which “generally applies”. The observations, of the judge also suggests the option of no re-examination where there is no dispute, ambiguity or uncertainty about findings.
The Panel notes the provisions of the Personal Injury Commission Act 2020 (the PIC Act) and rule 128 which were of course not applicable at the time Batshon was decided. The guiding principle in the PIC Act[17] is for proceedings to be determined justly, quickly and cost effectively. Section 42(4) acknowledges the importance of cost as follows:
“In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.”
[17] Section 42.
The Panel notes that the treatment in dispute is three MRI scans. It is the clinical experience of the Medical Assessors that the average cost of an MRI scan is $375 but that they can range up to $700 each. Therefore, the dispute is this matter is about treatment in the order of about $1,000 - $2,100. That is of course not an insignificant sum to many people in this country but when compared, for example to a dispute about WPI where a claimant’s entitlement to non-economic loss (the maximum of which is currently $658,000) is at stake, the dispute should, in the Panel’s view be dealt with proportionately.
The Panel has considered the 550 pages of documents provided by the parties and is of the view that the Panel can undertake a just assessment of the dispute based on the evidence that has been put before the Commission.
The Panel relayed a message to both parties on 24 February 2025 indicating this was how they intended to proceed and requested the parties notify the Panel if they had any objections. The claimant responded indicating he had no objections.

Is the treatment related to the injuries caused by the accident?

The three disputed imaging studies concern the claimant’s neck, lower back and right knee.
The claimant’s history to Dr Lim and others in his practice has been of a fractured wrist, reduced and fixed in hospital, the consumption of pain killers (including Endone) in the immediate period after injury. The claimant became aware of neck and back pain within a week or two of the accident as these pain killers wore off.
The claimant also reported to Dr Lim and others in his practice the development of right knee pain as his recovery progressed and he became more active. As he was walking more, he noticed right knee symptoms.
The neck and back had been imaged in January 2022 and the right knee was imaged in March 2022.
In October and November 2023, the claimant reported to Dr Deshpande and the doctors at Dr Lim’s practice that he had ongoing pain in the neck, lower back and right knee.
While the Panel notes the claimant told Dr Khong he had previous neck problems in 2018 and the records of Dr Hassan document severe lower back pain in 2015 (but no consultations in 2018 or any consultations for neck pain), the claimant has consistently complained of neck, back and right knee pain since the accident and at least up until the end of 2023.
The Panel is satisfied that on the information currently before us, the claimant sustained some form of injury to his neck and lower back and developed symptoms in his right knee. The Panel is of the view that the requested imaging is therefore related to the injuries resulting from the motor accident.

Is the treatment reasonable and necessary in the circumstances?

General principles

The Panel has not been taken to any cases of the District or Supreme Courts where the phrase “reasonable and necessary” has been considered. There are however several workers compensation cases. The following principles emerge from those cases:
(a)    treatment is considered necessary if its “purpose and potential effect is to alleviate the consequences of injury” see Rose v Health Commission (NSW)[18] (Rose) at 48A;
[18] [1986] NSWCC 2; (1986) 2 NSWCCR 32, Burke CCJ at [48A].
(b)    treatment will be “reasonably necessary” if it is essential and should not be withheld from the injured worker. See Rose at 48B;
(c)    in deciding a treatment dispute, regard must be had to:
“…medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
See Rose at 48C;
(d)    the dictionary definition of “necessary” involves being “indispensable, requisite, needful, that cannot be done without”[19] or something “that cannot be dispensed with”.[20] See Clampett v WorkCover Authority (NSW)[21] (Clampett) at [23] and [24];
(e)    the phrase “reasonably necessary” is a composite phrase where the word “reasonable” qualifies or tempers the idea of necessity. See Diab v NRMA[22] (Diab);
(f)    the phrase “reasonably necessary” does not mean “absolutely necessary”. See Moorebank Recyclers Pty Limited v Tanlane Pty Limited[23] at [154] and Diab at [86] where Deputy President Roche noted that if something is “necessary”, as in indispensable, it will be “reasonably necessary because reasonably necessary is a lesser requirement than “necessary”, and
(g)    indicia for reasonableness set out by Burke CCJ in Rose at [76] and cited in Diab at [86] include, but are not limited to:
(i)the appropriateness of the particular treatment in dispute;
(ii)the availability of alternative treatments, and the potential effectiveness of the alternatives;
(iii)the cost of the treatment;
(iv)the actual or potential effectiveness of the disputed treatment, and
(v)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[19] Shorter Oxford English Dictionary, 3^rd ed.
[20] Macquarie Dictionary
[21] [2003] NSWCA 52; (2003) 25 NSWCCR 99.
[22] [2014] NSWWCCPD 72, Deputy President Roche.
[23] [01] NSWCA 445
Deputy President Roche in Diab at [86] considered that the phrase “reasonable and necessary” was a “significantly more demanding test” than the equivalent phrase in the workers compensation legislation. The Panel must consider whether the treatment Mr Shoyeb wants is reasonable and whether it is necessary.

The imaging in dispute was requested by Dr Siddiqui who was in practice with Dr Lim and who appears to have access to the 2022 MRI images and reports. He requested “updated imaging” due to “worsening right knee pain” and “worsening back pain”. The request for the three images was supported by Dr Deshpande, pain specialist who said they were needed “to investigate and formulate the diagnosis for ongoing right knee pain and axial pain that has been worsening.” The claimant’s right knee pain had been investigated with an MRI in March 2022 and his axial spinal pain had been investigated by MRIs in January 2022. Dr Deshpande makes no reference to the 2022 MRI images in her communications with the GPs who referred Mr Shoyeb to her. It is not at all clear to the Panel that she had viewed the images or whether she was provided with copies of other documents such as the report of Dr Khong.
The clinical judgment of the Medical Assessors is that the fundamental reason for performing an investigation is to inform further management of the patient’s medical problems. The utility of any investigation is enhanced by there being a high probability of the sought pathology in the population being tested. Performing investigations, especially imaging, without a specific diagnostic possibility or hypothesis being tested is a poor strategy, fraught with the problem of false positive findings.

Dr Khong diagnosed axial spinal pain, that is spinal pain without neurological symptoms. The clinical judgment of the Medical Assessors is that MRI scans of the spine are not indicated for the investigation of axial spinal pain alone, unless specific conditions are suspected, and confirmation or exclusion being sought. A non-exhaustive list of these possible conditions would include suspected infection, tumour or inflammatory disease. None of these conditions are suspected in Mr Shoyeb’s case. The Medical Assessors note there is a high prevalence of abnormalities such as disc bulges, facet joint arthritis and degenerative disc disease in the asymptomatic population (people with no symptoms), meaning that the implication of pain symptoms from any particular structure is virtually impossible to determine.
If a patient is complaining of new or changed neurological symptoms (confirmed with neurological testing) then cross-sectional imaging, such as CT or MRI scanning, can confirm the site of any neural compromise. This has important therapeutic utility where symptoms are new, unexpectedly persistent or progressive and surgical or other invasive intervention is being contemplated. In such a setting these investigations are reasonable and necessary.
The Panel notes Dr Khong saw the claimant on two occasions in 2022 and did not wish to see the claimant again. He did not request repeat scans. The Panel also notes that Dr Wallace records in May 2023 “no current pain” in the lumbar spine and the resolution of symptoms in the right buttock and thigh to the knee. Mr Shoyeb did not report the development of neurological symptoms or changed symptoms in October or November 2023 to Dr Deshpande, pain specialist. His pain was said to be continuing, but he has had no neurological symptoms only axial pain in his neck and lower back and separate right knee pain. The lumbar spine examination was normal. Dr Bodel records in March 2024 intermittent lower back pain but no right leg or knee pain.
On the basis of the above, and all of the material provided to the Panel, there is no clear evidence that the claimant’s spine and right knee symptoms have changed, or changed significantly enough to warrant further scans.

Right knee MRI

Similar principles apply to the investigation of knee pain with MRI scans. MRI scans of the knee are indicated in a clinical setting where there are concerns over specific processes such as the healing of a fracture, the progress of infection, inflammation (such as rheumatoid arthritis) or tumour, or where there is concern over an intra-articular derangement that may require surgical intervention such as loose cartilage, meniscal tear, or ligament rupture.
These considerations are even more pertinent in the setting of previously normal or non-contributory diagnostic imaging. In Mr Shoyeb’s case he had a totally normal MRI undertaken in March 2022 which revealed no evidence of any structural damage to the bones or soft tissues in the knee. There was no clear change in symptoms for example, weakness or giving way. There was reported increase in the amount of pain, but this does not, in the clinical judgment of the Medical Assessors suggest new pathology to warrant repeating prior investigations.
The Panel also notes that when examined by Dr Wallace for the insurer on 15 May 2023 and when examined by Dr Bodel ion 15 March 2024 there was no reference to current complaints of right knee pain or lower limb symptoms.
The Panel is not satisfied that the MRI scan of the claimant’s right knee is reasonable or necessary in the circumstances.

CONCLUSION

The Medical Assessors are of the view there is generally no need for imaging to be “updated” simply due to the effluxion of time.
Applying the reasonableness criteria from Diab and the concept of necessity as referred to in the other cases, the Panel finds that the repeat MRIs of the claimant’s cervical or lumbar spine are not reasonable and necessary in the circumstances of Mr Shoyeb’s injuries and his current complaints:
(a)    the MRI scans are a diagnostic tool;
(b)    they are not indispensable or essential diagnostic tests that cannot be done without;
(c)    the two Medical Assessors on the Panel consider they are not appropriate tests to have in a person with axial pain and no clear neurological signs;
(d)    they are not likely to be effective as they are unlikely to alter the treatment regime of the claimant’s axial spine pain and right knee pain;
(e)    the cost is significant when balanced with the lack of any likely effect, and
(f)    it is unnecessary to have updated scans when the original scans were performed less than two years before the requests with no clear alteration in the nature of the symptoms.
The Medical Assessors do not consider that there was any stated diagnostic hypothesis being tested based on the reports of Dr Siddiqui in October 2023, or Dr Deshpande in November 2023. There was persistence of, but no clear indication of new symptoms. There are no physical findings by either doctor that would suggest that MRI scanning would change the management of the claimant’s spine or knee pain.
While related to the injuries sustained in the accident, the Panel finds that the three MRI scans in dispute are not reasonable and necessary treatment in the circumstances.
As the Panel has come to a different conclusion from Medical Assessor Shahzad, it follows that his certificate must be revoked.

[2025] NSWPICMP 122

26 February 2025