AAI Limited t/as GIO v Bateman
[2024] NSWPICMP 442
•4 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Bateman [2024] NSWPICMP 442 |
| CLAIMANT: | Adam Bateman |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | Clive Kenna |
| MEDICAL ASSESSOR: | Sophia Lahz |
| DATE OF DECISION: | 4 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury and treatment and care; claimant claimed he sustained injuries to the head, cervical spine, thoracic spine and lumbar spine; Medical Assessment Certificate (MAC) determined that cervical degenerative disc disease and thoracic degenerative disc disease was caused by the motor accident; found a non-threshold injury; MAC determined that the referral to an osteopath for treatment did not relate to the injuries caused by the motor accident, was not reasonable and necessary in the circumstances and would not improve the recovery of the claimant; review sought by the insurer under section 7.26; clauses 5.7, 5.8 and 5.9 of the SIRA Motor Accident Guidelines, 10 November 2023 considered and applied; Held – the claimant sustained soft tissue injuries to his head, cervical spine, thoracic spine and lumbar spine caused by the motor accident; such injuries were threshold injuries; referral to an osteopath is not reasonable and necessary in the circumstances and will not improve his recovery; MAC is revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Anil Nair dated 25 October 2023. 2. Certifies that the following injuries caused by the motor accident on 14 August 2019 are threshold injuries for the purposes of the Motor Accident Injuries Act 2017: (a) a soft tissue injury to the head; (b) a soft tissue injury to the cervical spine; (c) a soft tissue injury to the thoracic spine, and (d) a soft tissue injury to the lumbar spine. 3. Certifies that the referral to Dr Greg Fitzgerald for osteopathic treatment to the cervical spine: (a) is related to the cervical spine injury caused by the motor accident on 14 August 2019; (b) is not reasonable and necessry in the circumstances, and (c) will not improve the recovery of the claimant. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Mr Adam Bateman, is a 37-year-old man who was involved in a motor accident on 14 August 2019 whilst driving a vehicle that came to a stop behind traffic that had come to a sudden stop and was rear-ended by the vehicle behind him that pushed his vehicle forward. The vehicle behind him was rear-ended by another vehicle and the latter vehicle was, in turn, rear-ended by another vehicle (the motor accident).
On 16 August 2019, Mr Bateman made a claim for personal injury benefits. The relevant compulsory third party insurer was AAI Limited t/as GIO (the insurer).
Mr Bateman claims that he suffered whiplash injuries with intense sharp pain to his back, neck and head.
Mr Bateman’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
A dispute has arisen between Mr Bateman and the insurer as to whether, for the purposes of the MAI Act, the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
A treatment dispute has also arisen between Mr Bateman and the insurer in respect of osteopathic treatment.
The treatment dispute is also a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(b) of the MAI Act.
The medical disputes were referred to the Personal Injury Commission (Commission) and the Commission assigned them to Medical Assessor Anil Nair for assessment.
The medical dispute was assessed by Medical Assessor Nair, who issued a certificate dated 25 October 2023 wherein he determined that cervical degenerative disc disease and thoracic degenerative disc disease was caused by the motor accident and certified that it was a
non-threshold injury for the purposes of the MAI Act. Further, he determined that the referral to Dr Greg Fitzgerald, osteopath, for osteopathic treatment did not relate to the injuries caused by the motor accident; was not reasonable and necessary in the circumstances; and would not improve the recovery of Mr Bateman (the Medical Assessment).
REVIEW PROCEDURE
The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 11 January 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 19 January 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
Initially, Mr Bateman was not legally represented. He did not lodge a final bundle of documents with the Commission. He subsequently became legally represented but no final bundle of documents was lodged on his behalf by his lawyers.
On 4 March 2024, the Panel informed the parties that it considered a re-examination of Mr Bateman was required. Arrangements were made for Mr Bateman to be re-examined by Medical Assessor Clive Kenna on 9 April 2024.
STATUTORY PROVISIONS
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a ‘soft tissue injury’.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Section 1.6 of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of the assessment of threshold injury to the neck or spine, cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“Soft tissue assessment - injury to a spinal nerve root
5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of the spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent Impairment’:
(a)loss of symmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 22 January 2024 (insurer’s documents), and
(b) the President’s delegate’s decision dated 11 January 2024.
ASSESSMENT UNDER REVIEW
Medical Assessor Nair examined Mr Bateman on 9 June 2023 and issued a certificate under s 7.23(1) of the MAI Act dated 25 October 2023.
Medical Assessor Nair was asked to assess the threshold injury dispute in respect of the following injuries:
(a) intense sharp pain to the back;
(b) intense sharp pain to the neck, and
(c) intense sharp pain to the head.
Medical Assessor Nair was also asked to assess whether the referral to Dr Greg Fitzgerald, osteopath, for treatment related to the injuries caused by the motor accident; is reasonable and necessary in the circumstances; and will improve the recovery of Mr Bateman.
Medical Assessor Nair reported that there was no pre-accident medical history or any relevant personal details of significance to be noted.
Medical Assessor Nair took the following brief history of the motor accident:
“Mr Bateman was driving in the Illawarra region. A car struck him from behind and then two other cars struck the car in question. There were four vehicles in total. Following the accident, he developed pain in his subaxial [sic] cervical spine radiating into his occiput and his thoracic spine.”[2]
[2] Insurer's documents at page 7 at [10].
Medical Assessor Nair took the following brief history of symptoms and treatment following the motor accident:
“He had intrusive pain in his subaxial [sic] cervical spine radiating into his occiput. He had pain in the midthoracic spine. He consulted an osteopath who has performed manipulation and stretching exercises.”[3]
[3] Insurer's documents at page 7 at [11].
Medical Assessor Nair noted that Mr Bateman had not sustained any injuries or suffered from any conditions following the motor accident. He recorded Mr Bateman’s current symptoms as pain in the sub axial cervical spine radiating into the occiput and the thoracic spine. He noted that Mr Bateman was not on any current treatment.
In respect of general presentation and consistency, Medical Assessor Nair observed that Mr Bateman was well presented, cooperative and forthright. There was no evidence of exaggeration or embellishment.
On examination of Mr Bateman’s cervicothoracic spine, Medical Assessor Nair observed that he was clinically balanced; had a normal gait pattern; had about 30% global reduction in cervical range of motion; biceps, triceps and brachioradialis reflexes were present and symmetrical; there was 5/5 upper extremity power from C5 to T1; there was no paraesthesia in the upper limbs; there was guarding and dysmetria with cervical range of motion.
On examination of Mr Bateman’s thoracolumbar spine, Medical Assessor Nair observed guarding with thoracolumbar range of motion. In respect of thoracolumbar range of motion, flexion was 50°; extension was 20°; rotation to the right was 30°; rotation to the left was 20°; and lateral flexion to the right and left was 20°. Reflexes, including knee and ankle jerks were present and symmetrical. Plantar response was downward and pedal pulses were present.
Medical Assessor Nair listed the documentation that had been provided to him. He noted the X-ray of Mr Bateman’s cervical spine and thoracic spine dated 11 October 2019, which had been brought to the assessment, and acknowledged the result as demonstrating narrowing at C3/4 and C4/5 with thoracic endplate depression at multiple levels.
Medical Assessor Nair opined that Mr Bateman presented with clinical and radiological evidence of cervical and thoracic degenerative disc disease. He opined that the pain in Mr Bateman’s occipital region or head region was most certainly consequent to a cervicogenic headache as a result of the cervical disc injuries he sustained secondary to the motor accident. This cervical degenerative disc disease and thoracic degenerative disc disease were caused by the motor accident. Prior to the motor accident, Mr Bateman was largely asymptomatic.
In conclusion, Medical Assessor Nair opined that Mr Bateman had suffered an aggravation of cervical and thoracic degenerative disc disease caused by the motor accident and that such conditions were non-threshold injuries.
In respect of the treatment dispute, Medical Assessor Nair opined that the request for a referral to Dr Fitzgerald for osteopathic treatment had been initiated by Mr Bateman’s symptoms as a result of the motor accident. However, he opined that the referral to Dr Fitzgerald was not reasonable and necessary as osteopathic care would not improve the underlying pathoanatomy, nor would it improve recovery.
REVIEW OF THE EVIDENCE
Application for personal injury benefits
On 16 August 2019, Mr Bateman completed an application for personal injury benefits (the application form).
The application form set out the basic particulars of the motor accident and Mr Bateman described the accident as follows:
“I was travelling southbound along Mount Ousley Road, Mount Pleasant in VEH1 the traffic in front of me came to a sudden stop. I had to break heavily coming to a complete stop, seconds later I was [sic] felt and [sic] impact and was hit be [sic] VEH2. This impact caused my VEH1 to be pushed forward. VEH2 was hit by VEH3 who was hit by VEH4. Total of four vehicles involved. I driver of VEH1 did not hit any vehicle.”[4]
[4] Insurer's documents at page 20.
In the application form, Mr Bateman described the injuries caused by the motor accident as whiplash with intense sharp pain to the back, neck and head.
In the application form, Mr Bateman denied suffering an illness or injury to the same or similar body parts at the time of the motor accident.
Treating medical records and reports
On 16 August 2019, Mr Bateman consulted Dr Mairaed Crawford, general practitioner, of HealthPlus Medical Centre in respect of the injuries he sustained as a result of the motor accident. Dr Crawford issued Mr Bateman with a certificate of capacity certifying him fit for pre-injury work from 19 August 2019. Dr Crawford diagnosed Mr Bateman as suffering from lumbar and neck muscle spasm caused by the motor accident, which involved in a rear-end collision. She opined that the pain and spasm was consistent with a whiplash injury. She recommended simple analgesia, gentle stretching and warm showers/heat packs.[5] She referred him to InForm Physiotherapy for opinion and management in respect of his whiplash injury with thoracolumbar and cervical stiffness and spasming.[6]
[5] Insurer's documents at pages 28-30 and pages 59-60.
[6] Insurer's documents at page 31.
On 26 August 2019, Mr Stuart Wood, physiotherapist, of InForm Physiotherapy completed an allied health recovery request seeking eight sessions of physiotherapy for Mr Bateman over a one to two week period. Mr Wood diagnosed whiplash and noted Mr Bateman’s current symptoms as low back pain and stiffness and neck pain and stiffness. It was noted that Mr Bateman underwent his first session of physiotherapy on 19 August 2019.[7]
[7] Insurer's documents at pages 30-37.
On 30 August 2019, Mr Bateman consulted Dr Crawford and reported an improvement in his back pain initially but then, the recent recurrence of back spasms. Dr Crawford advised him to continue medicating with Panadol and Voltaren and to continue with the physiotherapist’s prescribed exercises.[8]
[8] Insurer's documents at page 61.
On 11 October 2019, Mr Bateman consulted Dr Crawford. Dr Crawford issued a certificate of capacity recording a diagnosis of whiplash with chronic neck and thoracic pain. She noted a sitting tolerance of one hour and that there was slow progress in respect of symptoms with relapsing remitting pain particularly in the cervical spine and thoracic spine with severe muscle spasm. She referred Mr Bateman for X-rays.[9]
[9] Insurer's documents at pages 38-40 and page 62.
On 11 October 2019, Mr Bateman underwent X-rays of his cervical spine and thoracic spine by Dr Helen Scott, radiologist, on the referral of Dr Crawford. The history provided to Dr Scott was of a whiplash injury eight weeks earlier with slow improvement of symptoms. In respect of the cervical spine, Dr Scott reported that alignment appeared normal; disc spaces were maintained; and there was some narrowing seen at exit foramina at C3/4 and C4/5 levels bilaterally. In respect of the thoracic spine, Dr Scott reported slight endplate depression at a couple of levels which were insignificant. There was other bony abnormality.[10]
[10] Insurer's documents at page 41.
On 18 October 2019, Mr Bateman consulted Dr Crawford and they discussed the X-ray findings. Mr Bateman reported that his neck and back pain had been improving. Dr Crawford opined that the injuries appeared consistent with soft tissue injuries related to whiplash. She prescribed Mr Bateman with Voltaren 50mg tablets three times per day.[11]
[11] Insurer's documents at page 63.
On 27 October 2019, Mr Bateman consulted Dr Crawford complaining of persistent neck and back pain following the motor accident. He had been attending physiotherapy once per week but did not feel that it was making a huge difference. Mr Bateman complained of a pain flare-up following physiotherapy treatment and that the pain was starting to have a psychological impact.[12]
[12] Insurer's documents at page 64.
On 28 October 2019, Dr Crawford prepared a report addressed to “whom it may concern”.[13] Dr Crawford reported that she was first consulted by Mr Bateman on 16 August 2019 when he described being involved in a motor accident on 14 August 2019 where his car was hit from the rear whilst travelling in an 80kmph zone. The airbags were not deployed. He
self-extricated from the car and had some initial neck and lower back pain immediately following the motor accident. He complained of more severe spasming of his back the day following the accident than at the time of the consultation. Dr Crawford determined that he was suffering from a whiplash injury as a result of the motor accident and she commenced him on analgesia with a plan for follow-up with a physiotherapist for early mobilisation.
[13] Insurer's documents at pages 42-43.
Dr Crawford reported that Mr Bateman next consulted her on 30 August 2019 complaining of a flare-up of his pain with a specific complaint of spasming in the thoracic area of his back. Examination was unremarkable. The pattern of remitting pain had been recurring, with
Mr Bateman also presenting for review on 11 October 2019 with a similar flare-up of his pain. He was referred for X-ray to ensure there was no missed underlying pathology contributing to his pain.
Dr Crawford reported that the X-ray demonstrated some narrowing at the exit foramina at C3/4 and C4/5 bilaterally as well a slight endplate depression at a couple of levels of the thoracic spine. Dr Crawford opined that it was unlikely that the X-ray findings were related to the motor accident. However, she noted that Mr Bateman had reported no prior history of neck or back pain and that, therefore, his current symptoms were most likely a result of the motor accident. Dr Crawford further opined that Mr Bateman’s symptoms had now exceeded the duration of time of which she would have expected the acute inflammation from the whiplash injury to be causing pain. She opined that he was most likely developing a chronic pain syndrome, secondary to the whiplash injury. She anticipated that Mr Bateman would require ongoing therapy to manage his pain, including input from a multidisciplinary team.
On 14 November 2019, Mr Wood completed an allied health recovery request seeking a further eight sessions of physiotherapy for Mr Bateman.[14] The rationale for the services requested was stated to be ongoing complaints of neck pain and stiffness with prolonged sitting.
[14] Insurer's documents at pages 45-49.
On 27 November 2019, Dr Crawford completed a questionnaire submitted by the insurer.[15] In the questionnaire, Dr Crawford provided a diagnosis of whiplash associated disorder grade II with recurrent back spasm. Dr Crawford advised that Mr Bateman was taking Voltaren 50mg tablets and paracetamol 1g tablets for his pain. She confirmed that he had no pre-existing injuries that could impact on his recovery. In respect of how his symptoms affected his functioning and participation in pre-accident activities, Dr Crawford referred to difficulties standing or sitting for prolonged periods due to discomfort; loss of confidence in his role as a police officer, particularly the more physical aspects of his role; and a concern about his ability to perform his duties as a police officer.
[15] Insurer's documents at pages 56-57.
On 9 January 2020, Mr Wood reported to Dr Crawford that Mr Bateman had consulted him on 19 August 2019 complaining of lumbar spine pain and cervical spine pain and limited mobility following a whiplash injury from a rear end collision. Mr Bateman had progressed steadily with, at least, a 50% improvement in symptoms. He no longer complained of sudden sharp pain. However, his main limitations were with prolonged sitting in a car at work and complaints of a constant dull neck ache and stiffness with neck rotation. He experienced significant improvement with prescribed medication. On the most recent examination, there was persisting joint stiffness and cervical spine muscle tension and ongoing ache with prolonged sitting. Mr Wood recommended the commencement of a prescribed exercise program to improve sitting posture and ongoing physiotherapy concentrating on neck muscle retraining/strengthening and manual therapy as required.[16]
[16] Insurer's documents at page 65.
On 24 January 2020, Dr Crawford reported to the insurer that Mr Bateman continued to complain of joint stiffness and cervical spinal muscle tension from a whiplash injury sustained after a rear-end collision in the motor accident. He had denied any previous back or neck issues. Whilst there was a general trend of improvement, he reported ongoing dull neck ache and stiffness, exacerbated by periods of prolonged immobilisation, especially prolonged sitting or standing. Mr Bateman had completed a course of physiotherapy with Mr Wood. The treatment consisted of pelvic correction, cervical and thoracic spine mobilisation, soft tissue release, manual traction and postural and core exercises. Mr Bateman felt that his progress had stagnated over the course of the last few physiotherapy sessions. Accordingly, Dr Crawford recommended a second opinion. The purpose of the second opinion was to ensure that an optimal treatment regime was being used to treat Mr Bateman’s symptoms in order to assist him in more appropriate management of his symptoms and help him promptly return closer to a pre-morbid level of functioning. Dr Crawford advised that she would be leaving the medical practice on 24 January 2020 and that Mr Bateman’s case had been handed over to Dr Nathan Low.[17]
[17] Insurer's documents at pages 66-67.
On 12 February 2020, Mr Wood completed an allied health recovery request seeking a further eight sessions of physiotherapy for Mr Bateman, noting that he had undergone 20 sessions to date. The stated goal was to have Mr Bateman experience no pain with prolonged sitting or standing at work. The stated rationale behind the requested further sessions of physiotherapy was to reduce stiffness and improve mobility that was currently being aggravated by prolonged sitting and standing at work. Mr Wood recommended a consultation with an exercise physiologist to design a program to lead to greater
self-management.[18]
[18] Insurer's documents at pages 68-72.
On 24 April 2020, Mr Ben Waldock, musculoskeletal physiotherapist, of St George Physiotherapy and Sports Injury Clinic prepared an independent physiotherapy consultant report addressed to the insurer.[19] Mr Waldock examined Mr Bateman on 21 April 2020. Mr Waldock reported that Mr Bateman was still in a degree of mild to moderate discomfort throughout his assessment. Following a clinical examination of Mr Bateman and a discussion with Mr Wood, Mr Waldock made the following recommendations:
(a) biweekly exercise physiology for four weeks and then weekly for a further eight weeks focusing on pain management strategies, mobility, strength and conditioning of cervical and thoracic stabilisers and a plan for regular home based self-management;
(b) a short period of three to four sessions of physiotherapy to assist with the transition to the demands of exercise physiology;
(c) an MRI scan to rule out additional pathology and if relevant, opinion from a neurosurgeon, and
(d) if on completion of the above, pain levels and function had not improved, a pain specialist review can be considered.
[19] Insurer's documents at pages 90-93.
On 17 June 2020, Mr Michael Omeros, exercise physiologist, of Guardian Exercise Rehabilitation completed an allied health recovery request seeking six exercise physiology sessions. The rationale behind the request was stated to be a work-task specific rehabilitative exercise program that would support Mr Bateman to increase his functional capacity to facilitate a return to pre-injury duties and support a long-term sustainable and durable return to work within his employment role. Further, it would enable him to independently manage his recovery through the habitual completion of his exercise program.[20]
[20] Insurer's documents at pages 94-98.
On 21 September 2020, Mr Omeros sent an email to the insurer advising that Mr Bateman had completed the six approved sessions of exercise physiology and had progressed quite well in relation to his overall functionality since commencing the program. He attached an allied health recovery request seeking approval for a further three sessions of exercise physiology for the purpose of working on some pain management and pacing strategies to assist with Mr Bateman’s spikes in pain and hopefully, minimise future flare-ups. It was also hoped that it would assist him in improving his self-efficacy and ability to continue with independent exercise after the completion of the program which, in turn, would assist with a sustainable and durable return to work.[21]
SUBMISSIONS
[21] Insurer's documents at pages 99-105.
Insurer’s submissions
The insurer provided written submissions in respect of the Medical Assessment dated 25 October 2023.[22] It also provided written submissions in respect of the Review dated 13 November 2023.[23]
[22] Insurer’s documents at pages 12-17.
[23] Insurer’s documents at pages 1-4.
Medical Assessor Nair failed to correctly apply the definition of threshold injury in accordance with s 1.6 of the MAI Act, Part 5 of the Guidelines and the Motor Accident Injuries Regulation.
In reaching the conclusion that Mr Bateman suffered a non-threshold injury to the cervical spine, he failed to identify or document, at least, two signs of radiculopathy as he was required to do in cl 5.9 of the Guidelines.
The available medical evidence demonstrated that none of Mr Bateman’s treatment providers reported clinical findings that would satisfy the criteria set out in Part 5.8 of the Guidelines, namely, the presence of genuine radiculopathy pertaining to a specific cervical spine, thoracic spine or lumbar spine nerve root injury.
There was no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the cervical spine, thoracic spine or lumbar spine as a result of the motor accident.
Accordingly, the available evidence demonstrates that Mr Bateman does not fall outside the definition of a threshold injury for the cervical spine, thoracic spine or lumbar spine injuries.
In respect of the treatment dispute for referral to Dr Fitzgerald for osteopathic treatment to the cervical spine, the insurer maintained that such treatment was not considered reasonable and necessary treatment and that it would not improve recovery based on the available evidence.
Mr Bateman completed about 20 sessions of physiotherapy over a six-month period, which focused on treatment goals that included returning to full duties as a police officer and reducing pain with prolonged sitting in the car and driving of greater than an hour.
Whilst there was evidence that Mr Bateman initially made progress with physiotherapy, including a return to work, his symptomology improvements began to plateau after about three months and he experienced flare-ups of pain from work and prolonged sitting and ongoing fluctuating joint stiffness impacting his cervical spine range of motion.
A recommendation was made for Mr Bateman to complete a few additional sessions with his physiotherapist, transitioning to biweekly exercise physiology for a targeted exercise program focussing on pain management, mobility, strength and conditioning and an MRI scan to rule out additional pathology.
Between April 2020 and October 2020, Mr Bateman engaged in about 13 exercise physiology supervised sessions, an independent gym session program designed by the exercise physiologist and a gym membership for three months. The exercise physiology program provided to Mr Bateman included a targeted strength and conditioning exercise program, pain management and pacing strategies and education, and guidance with exercise techniques, all to assist with self-management.
On 24 November 2020, Dr Low provided a certificate of capacity which diagnosed Mr Bateman with a whiplash injury and provided a referral to Dr Fitzgerald. There was no clinical reasoning or rationale provided in support of the referral, particularly when this request came 15 months after a soft tissue injury to the cervical spine and Mr Bateman had already progressed to an active based, clinical exercise program and had made progress in that program.
Osteopathic treatment is primarily passive, hands on manual treatment. At this stage of recovery, being chronic phase of recovery from soft tissue injuries, treatment that focuses on interventions which require active participation and independence (for example, a home exercise program to assist with self-management) is appropriate, in line with the State Insurance Regulatory Authority (SIRA) Guidelines for the Management of acute whiplash-associated disorders (Part 4.77.1 of the “Guidelines”), and the Clinical Framework for the Delivery of Health Services – principle 4.77.03 – empowering the injured person to manage their recovery.
Further, in accordance with the recommendation of Mr Waldock and Mr Omeros, sufficient appropriate active treatment had been administered, with sufficient self-management techniques including pain management strategies and pacing education as well as equipment being provided to manage residual symptomology.
Accordingly, the referral for osteopathic treatment was not reasonable and necessary treatment and it would not improve recovery based on the available evidence.
Mr Bateman’s submissions
Neither Mr Bateman nor his lawyers lodged any written submissions in respect of the Review and presumably, relied on the assessment of Medical Assessor Nair.
THE RE-EXAMINATION
Preamble
The Panel re-examination and assessment of Mr Bateman was undertaken by Medical Assessor Kenna on behalf of the Panel in the Commission’s medical suites on Level 8, 1 Oxford Street, Darlinghurst on 9 April 2024. Mr Bateman attended alone.
Mr Bateman understood that the assessment was in relation to a determination of whether the injuries to the neck, back and head were threshold injuries for the purposes of the MAI Act and whether a referral to Dr Fitzgerald, osteopath, for treatment was related to injuries caused by the motor accident and whether the referral was reasonable and necessary.
Mr Bateman, who had been self-represented but recently engaged a lawyer, considered that the injuries to his cervical and thoracolumbar spine and head were non-threshold injuries and were caused by the motor accident.
Pre-accident medical history and relevant personal details
Mr Bateman is a 37-year-old single male, who has been and is currently a serving police officer in the NSW Police Force. He has been a police officer for some 12 years. He described his general health as good.
Mr Bateman said that he had not been involved in any motor accidents prior to or since the motor accident. Further, he did not have any history of symptoms pertaining to his cervical spine or thoracolumbar spine prior to the motor accident.
History of the motor accident
The motor accident occurred on 14 August 2019. Mr Bateman was off duty at the time when the car he was driving was rear-ended. It was a four vehicle collision.
Mr Bateman stated that police attended the accident scene but ambulance did not. Mr Bateman drove home following the motor accident. The motor accident was described as a multi-pile car accident with the rear-ending of four cars. Mr Bateman was driving the lead car but did not hit the car in front. There was no loss of consciousness.
History of symptoms and treatment following the motor accident
Mr Bateman stated that, subsequently, he developed pain involving the suboccipital region of the cervical spine, with associated occipital headaches and thoracic spinal pain.
Mr Bateman stated that he came under the care of his general practitioner, Dr Crawford, who issued several certificates and also referred him for physiotherapy.
Mr Bateman stated that he received treatment by way of physiotherapy for about 10 months, usually attending up to twice per week. He estimated that he underwent, at least, 30 sessions of physiotherapy.
Mr Bateman stated that he also consulted an exercise physiologist for a period of some six weeks but he noted that he still had persistent neck pain and headaches, and he was not getting complete relief with physiotherapy treatment.
Mr Bateman stated that he heard about an osteopath, Mr Fitzgerald, with whom he underwent some six sessions. The insurer declined to fund such treatment and Mr Bateman requested his treating general practitioner for a referral, which was issued at the time. Nevertheless, funding for the osteopath was declined by the insurer.
Whilst the motor accident occurred in 2019, Mr Bateman continued to experience symptoms, although he clearly acknowledged there was improvement over time, with the main complaint being neck pain and occasionally, headaches.
Mr Bateman stated that he had ongoing osteopathic treatment as noted but such treatment ceased several years ago and indeed, he noted at the time of the Panel assessment, he had never since returned to the osteopath as his symptoms had become much milder and he was able to function normally, although he stated that he still was not 100%. That being the case, Mr Bateman acknowledged that, overall, there has been a 90% improvement over time and possibly with the associated manual therapy, be it physiotherapy and osteopathy.
Mr Bateman stated that he has continued to be able to function as a police officer with no lost time. He was examined by the NSW Police Force following the motor accident and he was cleared to return to normal duties, acknowledging that he has no restrictions and is able to do his normal duties.
At the time of the Panel assessment, it was 4.5 years post the motor accident. Mr Bateman has continued to work and has never been on restricted duties. Overall, he acknowledged that he has had quite a good result. He has not lost any time from work but nevertheless, certainly in the initial phases, stated that he had persistent neck pain and headaches with some associated spinal pain.
History of any relevant injuries or conditions since the motor accident
Mr Bateman stated that, in November 2023, in the course of his duties as a police officer, he was forcing a door open when he strained his lower back and ribs. He underwent physiotherapy and did not lose any time from work and he is back on normal duties.
Clinical examination
General presentation
Mr Bateman is a powerfully built individual whose main complaint is one of intermittent central cervical symptoms, but no referral involving either upper or lower extremity and some intermittent lower back pain.
Mr Bateman noted that his cervical symptoms can be aggravated by office work, that is, neck flexion and reading, or maintaining a fixed posture or position. He will take Voltaren or Panadeine as required, but it is not frequent.
In the background to the neck discomfort are also dull headaches. There was no past history of headaches and they were not present prior to the motor accident. Although, he notes these are far less severe and less frequent than was previously the case, paralleling his improvement in cervical symptomatology.
Findings on clinical examination include specific measurements of range of motion (ROM), where applicable, of each of the injuries assessed.
Cervical spine (cervicothoracic)
On examination of Mr Bateman’s neck, there was no muscle guarding or muscle spasm present. There was full range of motion and no asymmetry present.
There was no neurological deficit evident in either upper limb. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a
non-verifiable radicular complaint.
On formal examination of range of movement, there was full range of movement as follows:
| Movements | Range exhibited |
| Flexion | 100% full |
| Extension | 100% full |
| Rotation to the right | 100% full |
| Rotation to the left | 100% full |
| Lateral bending to the right | 100% full |
| Lateral bending to the left | 100% full |
Testing of reflexes demonstrated the following:
Reflex Left Right Triceps jerk Normal Normal Biceps jerk Normal Normal Brachioradialis Normal Normal
Testing of sensation was normal. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
There was no muscle wasting. Testing for muscle wasting demonstrated the following:
| Left | Right | |
| Upper arm | 38cm | 38cm |
| Forearm | 32cm | 32cm |
Testing for muscle power demonstrated the following:
Level Motor power Left Right C4 5/5 Normal Normal C5 5/5 Normal Normal C6 5/5 Normal Normal C7 5/5 Normal Normal C8 5/5 Normal Normal T1 5/5 Normal Normal 5/5 is active movement against gravity with full resistance;
4/5 is active movement against gravity with some resistance, and
3/5 is active movement against gravity only, without resistance.
Dural tension tests demonstrated the following:
Test Right Left Passive neck flexion Normal Normal Brachial plexus stretch Normal Normal
Thoracic spine (thoracolumbar)
On examination of the thoracic spine, posture was normal. There was no tenderness on palpation of the thoracic spine and no muscle guarding or spasm. There was no neurological deficit evident in either upper limb. There were no non-verifiable radicular complaints.
On formal examination of range of movement, there was full range of movement as follows:
| Movement | Range of motion |
| Flexion | 100% full |
| Extension | 100% full |
| Side bending to the right | 100% full |
| Side bending to the left | 100% full |
| Rotation to the left | 100% full |
| Rotation to the right | 100% full |
Lumbar spine (lumbosacral)
On examination of the lumbosacral spine, there was no muscle guarding or spasm present. There was a full range of motion and no asymmetry present. There was no neurological deficit evident in either lower limb. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement, there was full range of movement as follows:
Movements
Range exhibited
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
100% full
Lateral bending to the right
100% full
Lateral bending to the left
100% full
Testing of reflexes demonstrated the following:
Reflex
Left
Right
Knee jerk
Normal
Normal
Ankle jerk
Normal
Normal
Left
Right
Sciatic nerve stretch
(straight leg raise)Normal
Normal
Femoral nerve stretch
(prone knee bending)Normal
Normal
Testing of sensation was normal. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
There was no muscle wasting. Testing for muscle wasting demonstrated the following:
Left (cm)
Right (cm)
Thigh
(measured 10cm above the superior pole of the patella)Equal
Equal
Calf
Equal
Equal
Testing for muscle power demonstrated the following:
Level
Motor power
Left
Right
L3
5/5
Normal
Normal
L4
5/5
Normal
Normal
L5
5/5
Normal
Normal
S1
5/5
Normal
Normal
5/5 is active movement against gravity with full resistance;
4/5 is active movement against gravity with some resistance, and
3/5 is active movement against gravity only, without resistance.
There was no unilateral muscle atrophy. Testing for muscle atrophy demonstrated the following:
Thigh
Left = right
Calf
Left = right
Dural tension tests demonstrated the following:
Test Right Left Prone knee bend Normal Normal Straight leg raising Normal Normal Slump Normal Normal
Upper extremity – right shoulder
Examination of the right shoulder was normal. Arc, resisted motions and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative. Range of movement measured by goniometer was as follows:
Measurement
Reference
AMA 4 GuidesNormal
Upper extremity impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension
50°
Figure 38 (43)
50°
0
Adduction
50°
Figure 41 (44)
50°
0
Abduction
180°
Figure 41 (44)
180°
0
Internal rotation
90°
Figure 44 (45)
90°
0
External Rotation
90°
Figure 44 (45)
90°
0
Total
0
Upper extremity – left shoulder
Examination of the left shoulder was normal. Arc, resisted motions and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative. Range of movement measured by goniometer was as follows:
Measurement Reference
AMA 4 GuidesNormal Upper extremity impairment Flexion 180° Figure 38 (43) 180° 0 Extension 50° Figure 38 (43) 50° 0 Adduction 50° Figure 41 (44) 50° 0 Abduction 180° Figure 41 (44) 180° 0 Internal rotation 90° Figure 44 (45) 90° 0 External Rotation 90° Figure 44 (45) 90° 0 Total 0
DIAGNOSIS, CAUSATION AND REASONS
Threshold injury
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause symptoms in Mr Bateman’s head, cervical spine, thoracic spine and lumbar spine. Early documentation referred to head, neck and back symptoms. The absence of those symptoms prior to the motor accident and the development of and their persistence for a period of time thereafter indicates, on the balance of probabilities, that the motor accident did cause such symptoms.
There was no radiological evidence of a fracture in respect of Mr Bateman’s cervical spine, thoracic spine or lumbar spine.
There was no evidence of neurological symptoms. There was no indication of non-verifiable radicular complaints.
There was no evidence of a complete or partial rupture of tendons, ligaments or cartilage in Mr Bateman’s cervical spine, thoracic spine or lumbar spine.
Accordingly, the Panel finds that Mr Bateman suffered soft tissue injuries to his head, cervical spine, thoracic spine and lumbar spine caused by the motor accident and that those injuries are threshold injuries.
The treatment dispute
Neck pain and associated headaches were one of the major reasons for Mr Bateman seeking treatment. Subsequently, as a result of the persistence of neck pain, particularly headaches, he sought alternative treatment and obtained a referral from his general practitioner to consult an osteopath.
The Panel considers that the referral to an osteopath at the behest of Mr Bateman did relate to symptoms and injury caused by the motor accident, that is, cervical pain and headaches. The osteopathic treatment did alleviate his symptoms. However, that treatment has long since ceased. It was not clear from the records for how long Mr Bateman underwent osteopathic treatment but he is no longer attending. He acknowledges a substantial degree of improvement over time.
Mr Bateman attended physiotherapy for a period of time after the motor accident but there was ongoing chronicity of symptoms affecting work at the time. He considered there was not optimal improvement. It was on that basis that he attended an osteopath and either with treatment or over time, there has been further significant improvement to the point now that, in his estimate, his condition is 90% improved.
Clinical examination now indicates good functional mobility as noted, with no lost time from work and he is able to perform normal duties.
The Panel finds that undergoing osteopathic treatment so long after the motor accident would not be consistent with the SIRA Guidelines for the Management of acute whiplash-associated disorders and the Clinical Framework for the Delivery of Health Services – principle 4.77.03 – empowering the injured person to manage their recovery.
Accordingly, the provision of osteopathic treatment, whilst relating to the motor accident, is not considered reasonable and necessary in the circumstances and will not improve recovery in view of the amount of treatment already received to date.
FINDINGS
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[24] and Insurance Australia Ltd v Marsh.[25]
[24] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[25] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Kenna based on his examination and specific findings pertaining to diagnosis, causation and assessment as to whether the injuries were threshold injuries.
The Panel determines that Mr Bateman sustained soft tissue injuries to his head, cervical spine, thoracic spine and lumbar spine caused by the motor accident and that such injuries were threshold injuries for the purposes of the MAI Act.
The Panel determines that the referral to Dr Fitzgerald for osteopathic treatment is related to the soft tissue injury to Mr Bateman’s cervical spine caused by the motor accident but it is not reasonable and necessry in the circumstances and will not improve his recovery.
Accordingly, the certificate of Medical Assessor Nair dated 25 October 2023 is revoked.
CONCLUSION
The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.
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