AAI Limited t/as GIO v Barnes

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Barnes [2025] NSWPICMP 273
CLAIMANT:	Anna Barnes
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	22 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; treatment and care dispute; review of Medical Assessment Certificate (MAC); treatment and care in issue related to C5 to C7 anterior cervical decompression fusion surgery including a possible one level cervical disc replacement; claimant injured following a rear end collision; Medical Assessor (MA) found that the treatment and care sought was caused by the accident and was reasonable and necessary; claimant had pre-existing symptoms and treatment of her neck and shoulder however the Review Panel was satisfied that the claimant had not complained about these areas for several years before the accident; claimant subsequently had surgery and indicated her symptoms had improved; Held – Review panel satisfied that the C5 to C7 anterior cervical decompression surgery arose because of the accident and was reasonable and necessary; MAC confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel confirms the certificate of Medical Assessor Home dated 3 June 2024. 2. The following treatment and care do relate to the injury caused by the motor accident: (a) C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement. 3. The following treatment and care is reasonable and necessary in the circumstances: (a) C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement.

STATEMENT OF REASONS

INTRODUCTION

The insurer seeks a review of the certificate of Medical Assessor Home (the Medical Assessor) dated 3 June 2024.
The Medical Assessor certified the following treatment and care related to the injury caused by the accident and was reasonable and necessary in the circumstances:
(a) a request for C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.

The accident

On 18 March 2023, the claimant was a seat-belted driver whose car was stationary on King Georges Road in Beverly Hills. She was facing a red traffic control light. When the lights turned green, the claimant was unable to proceed due to stationary traffic ahead. Her vehicle was then struck from behind by the insured car and pushed forward. There was no additional front collision.
The claimant was able to drive her car home.

BACKGROUND

There is a dispute between the claimant Anna Barnes and the insurer about:
(a)
whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Motor Accident Injuries Act 2017

(the Act), and
(b) whether any treatment and care relate to an injury caused by the accident under Schedule 2, s 2(b) of the Act.

Treatment dispute/s to be assessed

The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment:
(a) whether the request for C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement relates to the injury caused by the motor accident, and
(b) whether the request for C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement is reasonable and necessary in the circumstances.

Insurer’s submissions

The insurer submits that the Medical Assessor failed to properly comply with the requirements of both the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition (AMA4 Guides) and the Motor Accident Guidelines (the Guidelines) when undertaking the subject assessment of the claimant’s injuries and disabilities.
The insurer submits the Medical Assessor made findings that are materially erroneous in relation to the assessment of the claimant’s alleged injuries.

Relates to the injury

The insurer submits that the certificate of the Medical Assessor was incorrect in a material respect on the grounds that he erred in finding that the treatment related to the injury caused by the accident. Specifically, the insurer submits that the Medical Assessor failed to consider and review all relevant material before him including completely an MRI of the cervical spine dated 11 May 2023. The MRI revealed facet joint degenerative changes at C3/4, C4/5 and C6/7. There was a disc osteophyte at C5/6. There was “possible” impingement of the exiting left C4 nerve root and “potential” impingement of the C5 and C6 nerve roots.
The insurer submits that the Medical Assessor failed to mention one of the comments at the bottom of the MRI that:
“The C2/C3 facet joint fusion raises the possibility of a longstanding seronegative spondyloarthritis”
Under ‘summary of relevant documentation’ in the Medical Assessor’s certificate and reasons, the insurer says the Medical Assessor made no mention of a report of
Dr Antoun dated 23 November 2023. The insurer says that Dr Antoun corresponded with reporting radiologist from I-Med, Dr Rashid who reviewed the MRI of the cervical spine with the CT scan of the cervical spine performed in 2015. It was reported:
“Dr Rashid noted that the C5/6 pathology and multilevel disc changes were consistent with degenerative progressive disease and there were no acute or traumatic features that would correlate with the reported time frame or described event.
Dr Rashid noted that the report of the cervical CT scan performed in 2015 was similar in nature to the then current imaging only more progressive, with the presence of marked osteophyte complex foraminal narrowing bilaterally.”
The insurer then noted that the Medical Assessor concluded that the claimant sustained an “aggravation of pre-existing degenerative changes between C5 and C7”.
The insurer submitted that the certificate contained a lack of proper conclusions and reasoning as to how the Medical Assessor found there was an aggravation to what the insurer submits was a clearly progressive degenerative disease of the cervical spine.

Certificate of Medical Assessor Truskett

The insurer says that the certificate of the Medical Assessor made no mention of a certificate of Medical Assessor Truskett dated 18 March 2024.
The insurer says that either the Medical Assessor was not provided with the earlier certificate of Medica Assessor Truskett, which the insurer says is a ‘relevant previous assessment’ or the Medical Assessor has failed to review the certificate of Medical Assessor Truskett.
The insurer says the Medical Assessor has not engaged with the opinion of Medical Assessor Truskett who found the claimant sustained a soft tissue injury to the cervical spine. In either scenario, the insurer submits that it has been denied procedural fairness and there has been an error in the determination of the Medical Assessor.

Reasonable and necessary

The insurer submits there is a lack of reasoning from the Medical Assessor in finding that the proposed cervical spine surgery was reasonable and necessary.
The insurer referred to the opinion of the Medical Assessor when he said in his certificate:
“Ms Barnes reports intrusive axial neck pain symptoms. There are marked degenerative changes at C5/6 and C6/7. It is probable that the proposed treatment will result in improvement of symptoms.
On that basis, the proposed request for treatment of C5-C7 anterior cervical decompression fusion surgery including a possible one level cervical disc replacement is reasonable and necessary in the circumstances in accordance with the requirements for ‘reasonable and necessary’ treatment as set out above.”
The insurer submits that the claimant’s ongoing symptoms are not causally related to the subject accident.
Further, the insurer says that it is unclear how the proposed surgery can be considered ‘reasonable and necessary’ when the chance of successfully alleviating symptoms is probable only and in circumstances whether the Medical Assessor did not find clinical evidence of radiculopathy.

Claimant’s submissions

The claimant submits that the accepted approach to determining causation involves determining whether the injury was caused or materially contributed to by the motor accident. The claimant says that the motor accident does not have to be a sole cause if it is a contributing cause, which is more than negligible.
The claimant says that the Medical Assessor set out what he considered to be the “factors relevant to, but not determinative, of the criteria of reasonableness” which he said were well settled and consisted of the following:
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment;
(c)    the cost of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the treatment as being appropriate or likely.
The claimant referred to the insurer’s submission that “Assessor Home makes no mention of the report of Tony Antoun dated 23/11/2023”. The claimant says that this submission is incorrect. The claimant referred to the certificate of the Medical Assessor where he said:
“I note that according to the report transcribed by Dr Antoun, in a report dated

23 November 2023, the previous preceding CT scans of the cervical spine performed to investigate right C6 paraesthesia performed on 21 October 2023 had demonstrated degenerative changes are maximal at C5/6 with potential right-sided C6 nerve root compression and displacement with further minimal disc bulge at C6/7”
The post-accident MRI imaging of the cervical spine also demonstrates multi-level degenerative changes maximal at C5/6 with minimal anterolisthesis at C6/7 due to facet joint degeneration.
The claimant reports that she cannot recall any symptoms of neck pain in the period prior to the subject accident.
She has since developed symptoms related to aggravation of the underlying degenerative changes.”
The claimant says that the Medical Assessor was not bound to reach the same conclusion as the insurer’s medico-legal expert, Dr Antoun, or for that matter, the claimant’s treating practitioners.
The claimant referred to the insurer’s submission that the Medical Assessor did not refer to the certificate of Medical Assessor Truskett. The claimant submits that the insurer did not seek to put the certificate of Medical Assessor Truskett before the Medical Assessor. The claimant says that it was open to the insurer to lodge an application to admit late documents but it did not do so.
Further, the claimant submits that it does not follow that because of the findings made by Medical Assessor Truskett, that the Medical Assessor has erred in his findings.
The claimant submits that, using his clinical expertise and judgment, the Medical Assessor has properly determined that the treatment the subject of the dispute is reasonable and necessary.
The claimant submits that it was entirely open to the Medical Assessor to make the findings that he did on the day of the assessment based on the claimant’s symptoms, the application of the Guidelines and using his clinical judgment.

Imaging

MRI of the cervical spine dated 11 May 2023 by Dr Rashid:
“C2/3 facet joints are fused bilaterally. No disc bulge. The canal exit foramina defined normally.
C3/4 mild bilateral facet joint degenerative change was evident. There are small bilateral uncovertebral osteophyte complexes resulting in some narrowing of the exit foramina, a little more marked on the left where impingement of the exiting left C4 nerve root is possible.
At C4/5 mild facet joint degeneration was evident. There was a tiny left uncovertebral osteophyte formation with some narrowing of the left neural exit foramen and potential impingement of the exiting left C5 nerve root.
At C5/6, intact facet joints, reduction in disc height associated with a generalised disc osteophyte and bilateral disc uncovertebral osteophyte complex associated with exit foraminal narrowing bilaterally and potential impingement of the exiting bilateral C6 nerve roots.
At C6/7 intact facet joints. Mild left facet joint degeneration. No posterior disc bulges. Patent central canal and neural exit foramina.”
MRI of both shoulders dated 11 May 2023 by Dr Rashid:
“Right shoulder: Status post previous acromioplasty and rotator cuff repair with attenuation of the supraspinatus repair fibres which demonstrate occasional full thickness tears associated with some fatty atrophy and enthesopathy. Intact infraspinatus repair fibres demonstrating tendinosis and interstitial tearing. Chronic non-retracted tuberosity, avulsion of the subscapularis tendon with Gout Allier 1 fatty atrophy in the superior third of the subscapularis muscle belly, full thickness rupture of the long-headed biceps tendon with distal retraction. Cuff osteoarthrosis.
Left shoulder: Moderate AC joint degeneration. Small SASV bursa. Supraspinatus tendinosis. Anterosuperior insertional infraspinatus tendinosis on a background of a sentinel cyst. Diffuse high grade, at least partial thickness articular surface tendon avulsion involving the subscapularis with fatty atrophy in the superior half of its muscle bellies. Proximal full thickness rupture of the long-headed biceps tendon with retraction.”
Report by Dr Antoun of Medical Assist Network, injury management consultant. Dr Antoun requested the reporting radiologist to review imaging studies in the context of acute injury. Cervical spine review by Dr Rashid described no acute traumatic features to correlate with claimed time frame.
Dr Rashid reviewed a previous report of a CT scan performed in 2015, at that time noting right C6 paraesthesia. This report documented single pathology of the level of degenerative progress. Dr Rashid noted multi-level disc pathology from C3/4, C6/7 that was longstanding and a C2/3 facet joint fusion that raised the possibility of longstanding seronegative spondyloarthritis.
Dr Rashid concluded that the changes were consistent with degenerative progressive disease and not acute trauma.
Dr Rashid reviewed the MRI scans of the right and left shoulder in the context of acute injury dated 11 May 2023.
With the right shoulder, he concluded that the pathology was longstanding, previous surgical intervention with presence of fatty atrophy with no effusion, no oedema, and no signal of acute trauma and felt they were longstanding.
In the context of the left shoulder, Dr Rashid reported the pathology all consisted of degenerative features with no acute or traumatic feature, no effusion, and no oedema to correlate with time frame reported.
In conclusion, regarding the review of Dr Rashid of his previous reports on cervical and bilateral shoulder MRI scans, he concluded that the pathology was longstanding, chronic pathology due to progressive degenerative disease and did not correlate with the reported time frame.

Medical evidence

The Medical Assessor concluded that the claimant, presented with a history of ongoing complaints related to the subject motor vehicle accident, with injuries as follows:
(a) cervical spine- aggravation of pre-existing degenerative changes between C5 and C7.
The Medical Assessor noted that according to a report of Dr Antoun, dated

23 November 2023, the previous preceding CT scans of the cervical spine performed on

11 May 2023, to investigate right C6 paraesthesia had demonstrated degenerative changes were maximal at C5/6 with potential right-sided C6 nerve root compression and displacement with further minimal disc bulge at C6/7.
The Medical Assessor said that the post-accident MRI imaging of the cervical spine also demonstrated multi-level degenerative changes maximal at C5/6 with minimal anterolisthesis at C6/7 due to facet joint degeneration.

Cervical spine (cervicothoracic)

Examination of the cervical spine revealed normal spinal curvature without muscle spasm. Cervical spine flexion was performed to three fifths normal range, extension four fifths normal range. Right and left rotation were performed to three quarters normal range. Right lateral flexion is performed to two thirds normal range and left lateral flexion three quarters normal range. There was tenderness elicited to palpation overlying the right-sided paravertebral structures betweenC2/3 and C6/7. Neurological examination of the upper extremities revealed normal upper limb power in all muscle groups. There was no muscle wasting. There was reduced sensibility in the fingertips of all of the digits in a non-dermatomal pattern. The deep tendon reflexes were symmetrically preserved.
It was discussed that the claimant reported that she could not recall any symptoms of neck pain in the period prior to the subject accident. The Medical Assessor said that she had since developed symptoms related to aggravation of the underlying degenerative changes.
The Medical Assessor found that the accident was a material cause of the claimant’s ongoing disabilities and symptoms. On that basis, the requirement for treatment was in his finding causally related to the injuries caused by the accident.
Before the claimant was examined by the Medical Assessor, she came before Medical Assessor Truskett for determination of whether he had suffered a threshold injury. The Medical Assessor provided a certificate of 3 June 2024.
The following injuries were referred to Medical Assessor Truskett for assessment to determine if the claimant had suffered a threshold injury:
(a)    right shoulder including superior subluxation of the humeral head, rotator cuff arthropathy;
(b)    left shoulder including rotator cuff tendonitis and impingement, and
(c)    cervical spine including impingement of the exiting left C4, left C5 and bilateral C6 nerve roots with overall most advance involvement at the C5/C6 level with paraesthesia into the right hand.
It was reported that the claimant had undergone two right shoulder reconstructions. The first was in 2004. The second was in 2017.
Examination of the cervical spine by Medical Assessor Truskett revealed that;
“There was full range of neck movement with no muscle guarding. Neck flexion and extension was normal. Lateral flexion to left and right was normal. Rotation left and right was normal. Movements were performed slowly. There was no wasting of the muscles of the upper limb. Both arms measured 23 cm in circumference, 10 cm above the olecranon. Both forearms measured 21 cm at their widest point. Biceps, triceps, and supinator jerks were present and equal but reduced. Power and tone were normal. There was altered sensation over the right forearm and fingers. This, however, was variable and inconsistent and not of the distribution of radicular or peripheral nerve lesion. There were also some sensory changes of the left hand but these changes too were inconsistent with repeated testing.”

Regarding the cervical spine assessment, Medical Assessor Truskett referred to the cervical spine MRI performed on 11 May 2023 and reported on by Dr Rashid and noted above. Medical Assessor Truskett said that Dr Rashid concluded;
(a) moderate cervical spondylosis with potential impingement of the exiting left C4, left C5 and bilateral C6 nerve roots with overall most advanced involvement at C5/C6 level as detailed, and
(b) the C2/C3 facet joint effusion raises the possibility of a longstanding seronegative spondyloarthritis.
Medical Assessor Truskett noted that Dr Antoun requested the reporting radiologist to review imaging studies in the context of acute injury. Thereafter, a cervical spine review by
Dr Rashid described no acute traumatic features to correlate with claimed time frame. He reviewed a previous report of a CT scan performed in 2015, at that time noting right C6 paraesthesia. This is a report which documented single pathology of the level of degenerative progress. Dr Rashid noted multi-level disc pathology from C3/4, C6/7 that was longstanding and a C2/3 facet joint fusion that raises the possibility of longstanding seronegative spondyloarthritis. Dr Rashid concluded that the changes were consistent with degenerative progressive disease and not acute trauma. He said the pathology was long-standing chronic pathology due to progressive degenerative disease and did not correlate with the reported timeframe.
Medical Assessor Truskett determined that Dr Rashid, had reassessed his imaging reports after being requested to assess these images in the context of acute injury and concluded that the changes noted on MRI in the neck and both shoulders were entirely degenerative with no evidence of acute injury. On this basis, the described muscular and tendinous ruptures or tears were not acute and considered pre-existing.
It was reported that the claimant could not recall a history of neck pain or upper limb paraesthesia for which she had CT scan imaging in 2015. She recalled no neck pain or upper limb symptoms prior to the subject accident.
Medical Assessor Truskett said that the claimant was involved in a motor vehicle accident on 18 March 2023. He noted that she had had a background history of two previous right shoulder reconstructions and there was documented evidence of previous neck pathology necessitating an MRI scan.
Medical Assessor Truskett referred to Dr Rashid, reassessing his imaging reports in the context of acute injury and that he concluded that the changes noted on MRI in the neck and both shoulders were entirely degenerative with no evidence of acute injury. On this basis, the described muscular and tendinous ruptures or tears were said not to be acute and were considered pre-existing.
Medical Assessor Truskett said that based on documentation reviewed and the mechanism of injury described, the injuries sustained to the claimant’s neck and left and right shoulder were concluded to be soft tissue injuries relying on the history, physical examination, and review of documentation.
The claimant was referred to Dr Diwan, neurosurgeon, whom she attended around July 2023. Following further review in September 2023, Dr Diwan recommended two level spinal surgery. This was confirmed after X-ray imaging performed in September 2023 and repeated in November 2023.
The clinical notes from Dr Chowdhury record the claimant attending for a consultation on

19 May 2023, two months after the accident as a new patient. Complaints were made of neck pain, and bilateral arm pain. The claimant was reported as having had an MRI scan, seeing physio a[BG1] nd was also seeing another general practitioner (GP) Dr Aziz. She was reported to have undergone MRI scans of the cervical spine and both shoulders.
Report of Kevin Xi, physiotherapist dated 25 May 2023, sets out a treatment plan directed towards the claimant’s neck and bilateral shoulder complaints.
A report of Associate Professor Haber dated 29 June 2023 discussed ultrasound findings at the left shoulder including a full thickness rotator cuff tendon tear. He recommended a reverse right shoulder replacement.
An ultrasound examination of the right shoulder on 29 June 2023 demonstrated a full thickness tear of the rotator cuff tendons. A previously repaired supraspinatus tendon had ruptured and retracted beyond view.
A report of Dr Nabavi sets out recommendation for a right reverse shoulder replacement.
A PRP injection to the right shoulder was administered on 11 September 2023.
Dr Antoun provided a report of 23 November 2023. Dr Antoun contacted the reporting radiologist, Dr Antoun reported that Dr Rashid said that the MRI scan of 10 May 2023 of the cervical spine, compared to the previous imaging of the cervical spine in 2015, was of a similar nature and the described C6 pathology had progressed due to the degenerative nature of the disease. Dr Rashid said that the features were suspicious of a seronegative arthropathy and that the changes were consistent with long-standing chronic degenerative pathology with no acute automatic features related to the timeframe or claimed event.
Dr Antoun noted that the reported findings on the CT scan in 2015 had confirmed C5/6 pathology, C6 radiculopathy with bilateral narrowing and on comparison with the MRI scan of the cervical spine on 10 May 2023, similar progressive pathology with no acute or traumatic associated features of the cervical spine, only long-standing chronic progression, that was not related to, or directly caused by, the claimed event on 18 March 2023.

Medical examination

The claimant was examined by Medical Assessor Gorman on 18 March 2025. His report and findings follow:
Ms Barnes attended the assessment with her husband Mr Robert Barnes.
HISTORY
Pre-accident medical history and relevant personal details
Mrs Barnes is a 66 year old right handed women who continues to work full time in Border Force at the airport. She has been there 8 years.
Prior to that she was a Sterilizing Technician in theatres at Westmead Hospital.
She is married with one child.
She is a non-smoker.
She has 2-4 wines per day – “too much” she says.
She confirms that she underwent two previous operations for her right shoulder under the care of Dr Greg Burrows, orthopaedic surgeon including a right shoulder rotator cuff repair performed in the year 2000.
In 2015 she had recurrence of her right shoulder pain. She had a CT scan of the cervical spine on 21 October 2015. This was performed for “Right C6 paraesthesia”. She reported that this was done to exclude the cervical spine being a cause of her shoulder pain. The scan showed a right lateral disc protrusion at C5/6 with disc and bone changes causing a marked narrowing of the right intervertebral foramen. She was certain that she did not have neck pain.
A re-repair of the right rotator cuff was performed on 27 January 2016. She made a good recovery and regained near full movement of the shoulder. She was able to perform freestyle swimming.
She was advised by Dr Burrows that she could not return to her previous work as a sterilization technician but did manage to obtain work as an airport passport officer for the Australian Border Force where she has worked for 8 years.
History of the motor accident
Ms Barnes states that on the 18 March 2023, she was the seat-belted driver of a Toyota CHR Hatchback stationary on King Georges Road in Beverly Hills. The lights at the intersection had turned green but she was unable to enter the intersection due to traffic ahead. Her vehicle was struck from behind by a car and pushed forward. There was no secondary forward collision.
She managed to alight from the vehicle to exchange details. She recalls immediate symptoms of psychological shock, neck pain and pain across the shoulders as well as headache. She managed to drive to her home.
History and symptoms following the motor accident
She attended Dr Aziz, approximately one week later. She explained that she had been distracted by the passing of her father and the requirement to make arrangements for her mother. After review by Dr Aziz, she received treatment with analgesia. She was referred for physical therapy.
She came under the care of Dr Chowdhury, general practitioner from 19 May 2023. She was referred to Associate Professor Haber for assessment of her shoulder complaints.
Associate Professor Haber has recommended a reverse right shoulder replacement. She has received similar advice from Dr Nabavi. She underwent a series of PRP injections to the right shoulder, commencing in September 2023, which provided temporary symptom benefit between December 2023.
She was referred to Dr Diwan, neurosurgeon, whom she attended around July 2023. After further review in September 2023, Dr Diwan recommended two level spinal anterior decompression and fusion surgery.
She has gone on to have the surgery (paid for by the insurance) on 9 July 2024.

Dr Diwan found stiffness in the C5/6 articulation and a fusion was not necessary. He inserted a Prodisc replacement in C6/7 finding instability and a 4mm slip.
Current symptoms
Ms Barnes reports that the neck is good now. She no longer has headaches and pain under the skull.
Both shoulders remain painful but the pain does not seem to radiate down from the neck now.
The pain in the left shoulder is manageable but the right is still very painful.
She mainly uses the left arm, even for driving.
Her husband does heavier household tasks.
Details of relevant injuries or conditions since the accident
Nil
Current treatment
She is not having any physical therapies now.
She takes up to 4 Nurofen per day.
She takes Nexium at night.
CLINICAL EXAMINATION
General presentation
Ms Barnes presents is a well looking woman 159 centimetres and weighing 64.1 kilograms.
Cervical spine
There is a normal range of cervical spinal movement in all planes. There is no tenderness or muscle spasm.
The 3cm fine healed scar from the anterior cervical decompression and fusion is justvisible in the creases on the left neck.
Neurological ex[BG2] amination of the upper extremities reveals normal upper limb power in all muscle groups. There is no muscle wasting. Sensation is normal. The biceps and brachioradialis reflexes are symmetrical and normal.
Shoulders

SHOULDER MOVEMENTS	RIGHT (Degrees)	LEFT (Degrees)
Flexion	40	80
Extension	20	40
Adduction	20	30
Abduction	40	70
Internal rotation (at side)	70	80
External rotation (at side)	30	40

She had bilateral reduction in shoulder movements, most marked on the right side. These are outlined below:
Comments on consistency
Ms Barnes was cooperative and consistent in her clinical presentation.
Summary of relevant radiological and medical imaging and other investigations
MRI cervical spine dated 11 May 2023: C2/3 facet joints are fused bilaterally. No disc bulge. The canal exit foramina define normally. C3/4 mild bilateral facet joint degenerative change is evident. There are small bilateral uncovertebral osteophyte complexes resulting in some narrowing of the exit foramina, a little more marked on the left where impingement of the exiting left C4 nerve root is possible. At C4/5 mild facet joint degeneration is evident. There is a tiny left uncovertebral osteophyte formation with some narrowing of the left neural exit foramen and potential impingement of the exiting left C5 nerve root. At C5/6, intact facet joints, reduction in disc height associated with a generalised disc osteophyte and bilateral disc uncovertebral osteophyte complex associated with exit foraminal narrowing bilaterally and potential impingement of the exiting bilateral C6 nerve roots. At C6/7 intact facet joints. Mild left facet joint degeneration. No posterior disc bulges. Patent central canal and neural exit foramina.
X ray Cervical Spine dated 28 June 2023: there is fusion of C2/3 posteriorly. There is degenerative disc disease maximal at the C5/6 disc with disc narrowing and bony reaction. There is 4mm forward slip of C6 on C7.
MRI both shoulders dated 11 May 2023:
Right shoulder: Status post previous acromioplasty and rotator cuff repair with attenuation of the supraspinatus repair fibres which demonstrate occasional full thickness tears associated with some fatty atrophy and enthesopathy. Intact infraspinatus repair fibres demonstrating tendinosis and interstitial tearing. Chronic non-retracted tuberosity, avulsion of the subscapularis tendon with Goutallier 1 fatty atrophy in the superior third of the subscapularis muscle belly, full thickness rupture of the long-headed biceps tendon with distal retraction. Cuff osteoarthrosis.
Left shoulder: Moderate AC joint degeneration. Small SASD bursa. Supraspinatus tendinosis. Anterosuperior insertional infraspinatus tendinosis on a background of a sentinel cyst. Diffuse high grade, at least partial thickness articular surface tendon avulsion involving the subscapularis with fatty atrophy in the superior half of its muscle bellies. Proximal full thickness rupture of the longheaded biceps tendon with retraction.
DETERMINATIONS
Diagnosis, Causation and Reasons
Cervical spine: Aggravation of pre-existing degenerative changes between C5 and C7.
The Panel notes that she had previous preceding CT scans of the cervical spine performed to investigate right C6 paraesthesia performed on 21 October 2015 had demonstrated degenerative changes are maximal at C5/6 with potential right-sided C6 nerve root compression and displacement with further minimal disc bulge at C6/7.
Mrs Barnes was very clear in her recollection that this CT scan in October 2015 was performed preceding the re-repair of the right rotator cuff which is recorded as occurring in January 2016. She is certain that she had no neck symptoms. Dr Burrows referred to her as having a “massive cuff tear” at that time.
The post-accident MRI imaging of the cervical spine also demonstrates multi-level degenerative changes maximal at C5/6 with minimal anterolisthesis at C6/7 due to facet joint degeneration.
Mrs Barnes reports that she cannot recall any symptoms of neck pain in the period prior to the subject accident. She has, since the accident, developed symptoms related to aggravation of the underlying degenerative changes in the subject motor vehicle accident.
The Certificate of Assessor Truskett dated 1 March 2024. He decided that the cervical injury was a threshold injury. However, in the reasons on page 11 he only discusses the absence of radiculopathy – he does not consider whether there was injury to the fibrocartilaginous discs including the C6/7 disc. He believed that the changes in the spine are degenerative before and after the accident. However, he does not discuss the anterolithesis at C6/7 which Dr Diwan identified at his initial consultation on the 28 June 2023 as possibly being “the main source of her pain”.
The Panel believes that the ongoing pain after the accident relates to the accident and the need for the surgery proposed by Dr Diwan relates to the accident because while the claimant had a pre-existing condition of her cervical spine, this was asymptomatic at the time of the accident. She had not sought treatment for this condition and only following the accident did she then seek treatment due to the aggravation that had arisen due to the subject motor vehicle accident.
TREATMENT DISPUTES
Treatment and Care – reasonable and necessary
Whether the request for C5-C7 anterior Cervical decompression fusion surgery, including a possible 1 level Cervical disc replacement relates to the injury caused by the motor accident.
The Panel finds that the motor vehicle accident is a material cause of her ongoing symptoms. On that basis, the requirement for treatment set out by Dr Diwan is causally related to the injuries caused by the motor vehicle accident.
Whether the request for C5-C7 anterior Cervical decompression fusion surgery, including a possible 1 level Cervical disc replacement is reasonable and necessary in the circumstances
Ms Barnes reported axial neck pain symptoms which have continued since the accident. There are marked degenerative changes at C5/6 and C6/7.
The proposed treatment has taken place and has resulted in improvement in her symptoms.
The treatment was appropriate and recommended by a well qualified spinal surgeon. She had waited a sufficient time hoping for resolution of her symptoms. She had conservative care without improvement.
In the X ray Cervical Spine dated 28 June 2023 there is spontaneous fusion of C2/3 posteriorly. There is degenerative disc disease maximal at the C5/6 disc with disc narrowing and bony reaction. There is 4mm forward slip of C6 on C7 suggesting instability.
The operation by Dr Diwan confirmed the instability at the C6/7 level – the axial pain was caused by instability and the need for the operation was not because of a radiculopathy but was because of that instability.
On the balance of probabilities, the proposed request for treatment of C5-C7 anterior cervical decompression fusion surgery including a possible one level cervical disc replacement was reasonable and necessary in the circumstances in accordance with the requirements for ‘reasonable and necessary’ treatment as set out above.
CONCLUSION – TREATMENT DISPUTES
Whether the request for C5-C7 anterior Cervical decompression fusion surgery, including a possible 1 level Cervical disc replacement relates to the injury caused by the motor accident.
The requirement for treatment set out by Dr Diwan is causally related to the injuries caused by the motor vehicle accident.
Whether the request for C5-C7 anterior Cervical decompression fusion surgery, including a possible 1 level Cervical disc replacement is reasonable and necessary in the circumstances
The requirement for treatment set out by Dr Diwan is reasonable and necessary in the circumstances

The Panel adopts the report and findings of Medical Assessor Gorman.

Causation/Reasons

Regarding causation, Medical Assessor Truskett said that on the basis of the mechanism of injury described, the injuries sustained to the claimant’s neck were concluded to be soft tissue injuries based on history, physical examination, and review of documentation.
Medical Assessor Truskett said that on his assessment, there was no evidence of radiculopathy in either upper limb. In addition, the findings on imaging, had been found to be longstanding and not a result of the incident on 18 March 2023 based on their morphology. On this basis, Medical Assessor Truskett said that the symptoms were pre- existent and therefore there was no evidence of threshold injury.
The first issue for consideration by the Panel is that of causation and then, if the Panel is satisfied about this, it is a question of whether the decompression fusion surgery was reasonable and if it was necessary.
The insurer has submitted that the 2015 imagery was very similar to the 2023 imagery and that the 2023 outcome was only an aggravation. Therefore, the insurer submits that the surgery was not reasonable and necessary.
Section 3.24 of the Act provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts. The section provides:
“(1) 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,
...
(2) 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.”
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, and whether the treatment sought is reasonable and necessary and if it arises because of contribution by the accident. Following on from this, the Panel must decide whether the accident materially contributed to those injuries and need for treatment.

The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips [2018] NSWSC 1710 at [29] . That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the Act.
The claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from New South Wales workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW [2003] NSWCA 52, Grove J stated:
“22 I return to the expression ‘reasonably necessary’ in s60. 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.”
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. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The claimant subsequently undertook imaging of her shoulders and cervical spine on
11 May 2023, approximately six weeks after the accident
As Medical Assessor Gorman said in his examination report, the claimant had immediate neck pain, bilateral shoulder pain and headache.
The claimant first saw her GP, Dr Aziz Aman on 30 March 2023, as evidenced in the certificate of capacity of 24 April 2023. She explained that she could not see him earlier because of the passing of her father and needing to make arrangements for her mother.
To Medical Assessor Gorman, the claimant clarified her pre-existing cervical spine issues. She said that she had never had neck pain. She stated that the CT scan done in 2015 was undertaken to rule out the cervical spine being the cause of her worsening right shoulder pain. The Panel accepts that this was a perfectly reasonable explanation and confirmed that the neck pain after the accident was not pre-existing.
The insurer also questioned the Medical Assessor for not looking at Medical Assessor Truskett's finding of threshold injury in the cervical spine. Medical Assessor Gorman has considered this in his examination report. Essentially, the Medical Assessor only referred to the claimant’s injury as a threshold because there was no radiculopathy. Dr Diwan had suspected the C6/7 disc was the problem from the time of the accident and his operation confirmed this. Medical Assessor Truskett did not really discuss disc changes in arriving at his threshold conclusion.
The Medical Assessor referred to the post-accident MRI imaging of the cervical spine which demonstrated multi-level degenerative changes maximal at C5/6 with minimal anterolisthesis at C6/7 due to facet joint degeneration.
The Medical Assessor confirmed that the claimant reported that she could not recall any symptoms of neck pain in the period prior to the subject accident. She has since developed symptoms related to aggravation of the underlying degenerative changes. The Medical Assessor therefore concluded that the subject accident was a material cause of the claimant’s symptoms. Medical Assessor Gorman concurs with this.
It is not clear to the Panel if the certificate and reasons of Medical Assessor Truskett were made available to the Medical Assessor. The insurer has criticised the Medical Assessor for not referring this, but he may not have been privy to it. The insurer does not say if it included the certificate of Medical Assessor Truskett in its documentation provided to the Medical Assessor.
The Panel is satisfied that on the balance of probabilities, as a result of the accident the claimant has suffered injuries to her cervical spine and shoulders. The claimant did not make any complaint about these areas of injury for several years before the accident. She may have had a pre-existing condition, but she was asymptomatic. Within a week of the accident, she sought medical attention and was treated for this thereafter. Thereafter she was provided with medical assistance including C5-C7 anterior cervical decompression surgery. This surgery, as informed by the claimant to Medical Assessor Gorman, has improved her condition.

Conclusion

The Panel is satisfied that the C5-C7 anterior cervical decompression surgery arose because of the accident on 18 March 2023. The nature of a rear end collision is on the balance of probabilities likely to cause a whiplash injury to the neck and in the claimant’s case, to make her susceptible to a cervical spine injury.
The claimant did not have neck pain immediately prior to the accident. Following the accident the claimant was in pain. She sought treatment for that pain and surgery was prescribed. She had that surgery, and her condition has improved as a result of that surgery.
The Panel is satisfied that the treatment and care sought by the claimant is reasonable and necessary. The treatment and care has already been provided and the claimant’s condition has improved because of it.

Determination

The Panel confirms the certificate of Medical Assessor Home dated 3 June 2024.
The following treatment and care do relate to the injury caused by the motor accident:
(a) C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement.
The following treatment and care is reasonable and necessary in the circumstances:
(a) C5-C7 anterior cervical decompression fusion surgery, including a possible 1 level cervical disc replacement.

[BG1]check

[BG2]Removed paragraph as it seems to be part of report ? check

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Citations

AAI Limited t/as GIO v Barnes [2025] NSWPICMP 273

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435

WAEE v Minister for Immigration [2002] FMCA 186

AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710

[2025] NSWPICMP 273

22 April 2025