AAI Limited t/as GIO v Cane

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Cane [2022] NSWPICMP 242
CLAIMANT:	Danny Cane
INSURER:	AAI Limited t/as GIO
REVIEW PANEL:	Member Belinda Cassidy Dr Margaret Gibson Dr Shane Maloney
DATE OF DECISION:	31 May 2022
CATCHWORDS:	MOTOR ACCIDENTS- Motor Accidents Compensation Act 1999; medical review in relation to dispute about treatment and care; issues about whether treatment related to the injuries caused by the accident and whether the treatment was reasonable and necessary; treatment modalities including GP, specialist and physiotherapy consultations, imaging studies, medication and care from the date of accident and for the remainder of the claimant’ life; three areas of the body allegedly injured (neck, back and right shoulder); past and future treatment claimed; Held- Claimant injured neck and back in the accident and shoulder problems related to the neck; past treatment incurred to the date of the assessment allowed no treatment allowed in the future; claimant had made good recovery and had not had much in the way of treatment for more than two years; no matter of principle.
DETERMINATIONS MADE:	1. Revokes the certificate of Medical Assessor Bodel dated 24 May 2021. 2. Certifies that the following treatment provided to Mr Cane relates to the neck (including right shoulder) and back injuries caused by the accident and is reasonable and necessary in the circumstances: (a) Imaging studies from the date of the accident to the date of this certificate. (b) General practitioner, neurological and physiotherapy consultations and treatment from the date of the accident to the date of this certificate. (c) Pain relieving medications (prescription or over the counter) consumed from the date of the accident to the date of this certificate. (d) Attendant care (domestic, home handyman and gardening assistance) from the date of the accident to 20 August 2020.

STATEMENT OF REASONS

INTRODUCTION

Danny Cane was involved in a motor accident on 1 November 2017 at 6.00am at Balgowlah. The claimant was apparently stopped at an intersection when his car was run into from the rear.
Mr Cane made a claim against GIO the third-party insurer of the car that caused his accident[1]. Mr Cain’s claim was a claim for damages made under the Motor Accidents Compensation Act 1999 (the MAC Act).
[1] The claim form is document 9 in the insurer’s bundle. It is missing the signature page which would include the date of the form. The insurer’s application for medical assessment suggests the claim was made on the day of the accident that is 1 November 2017.
A medical dispute arose in connection with that claim concerning the claimant’s treatment and care needs in the past and into the future and that dispute was referred to the former Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA). On 24 May 2021, Assessor James Bodel certified that some treatment and care needs were causally related to the injuries sustained in the accident and were reasonable and necessary in the circumstances and others were not.
The insurer was dissatisfied with the result and lodged an application for review with the Personal Injury Commission (the Commission). On 25 November 2021, the delegate of the President of the Commission determined that there was reasonable cause to suspect a material error in the assessment of Assessor Bodel and in due course the President convened the Panel.

LEGISLATIVE FRAMEWORK

General provisions

The MAC Act provides for the compulsory insurance of all motor vehicles registered in New South Wales and the licensing and regulation of the insurers providing that compulsory insurance.
The MAC Act also provides a scheme of limited benefits under Part 3.2 of the Act[2] and damages under Chapter 5. Damages are available for both non-pecuniary or non-economic loss and pecuniary or economic losses.
[2] Under the “Accident Notification” scheme in this part, up to $5,000 can be paid on a not-at-fault basis for treatment and lost income.
Entitlement to non-economic loss is restricted to those with a greater than 10% whole person impairment[3] and the maximum amount that can be awarded for non-economic loss is also restricted.
[3] Section 131.
Entitlement to and the quantum of economic loss is determined in accordance with common law principles subject to some restrictions in Part 5.2. Economic loss damages commonly include damages for past and future loss of earning capacity and damages for the injured person’s past and future treatment and care needs.
There are few limits to the damages that might be awarded for treatment and commercially provided care however the amount of damages that can be awarded for gratuitous care is regulated by section 141B of the MAC Act as follows:
“(1)   Compensation, included in an award of damages, for the value of attendant care services:
(a)   which have been or are to be provided by another person to the person in whose favour the award is made, and
(b)   for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
(2)     No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
(3)    Further, no compensation is to be awarded unless the services are provided (or to be provided)—
(a)  for at least 6 hours per week, and
(b)  for a period of at least 6 consecutive months.”

Dispute resolution of medical assessment matters

Section 58 of the MAC Act (in Part 3.3 of Chapter 3) provides that:
“(1)   This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters):
(a)   whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b)  whether any such treatment relates to the injury caused by the motor accident,
(c)   (Repealed)
(d)   whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e)   (Repealed)”
Section 42 provides a wide definition of “treatment” for the purposes of Chapter 3 as follows:
“(a)   medical treatment, or
(b)   dental treatment, or
(c)   the provision of rehabilitation services, or
(d)  the provision of attendant care services, or
(e)   the provision, replacement or repair of artificial members, eyes or teeth, crutches or other aids or spectacle glasses,
whether or not at a hospital.”
The term “attendant care services” is defined in section 3 of the MAC Act as meaning:
“... services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
Determination of medical assessment matters is now undertaken by Medical Assessors appointed by the President of the Commission.
The MAC Act provides for the assessment of disputes (section 60), the further assessment of disputes (section 62) and the review of medical assessments (section 63).
Section 61 of the MAC Act provides that the certificate issued by a Medical Assessor is “conclusive evidence as to the matters certified … in any assessment by the Commission in respect of the claim concerned”. In other words, the determination of the Panel will affect the quantum of the damages awarded by the Member of the Commission tasked with undertaking the assessment of Mr Cane’s damages claim.

WHAT IS IN DISPUTE?

Assessment under review

Assessor Bodel’s determination starts with a list of the 44 items of treatment and care in dispute between the parties. He says he has considered the documents provided in the application and reply forms and says there was no additional documentation provided.
He took the following history from the claimant:
(a)    Mr Cane was 42 years of age at the time of the assessment and at the time of the accident was well with no previous claims for compensation or other injuries or accidents.
(b)    The claimant was involved in martial arts but had struggled to return to the same level of competency. He used to surf but has not returned to that pastime.
(c)    He continued to work as a builder but mainly in project and site management and he minimises heavy lifting.
(d)    The claimant was stationary at traffic lights when he was run into from behind with the impact on the left rear corner. Police and ambulance did not attend, there was apparently minimal damage to Mr Cane’s vehicle although the other was written off.
(e)    The claimant reported developing neck and interscapular and periscapular pain on the right-hand side and on top of the right shoulder and he had lower back pain.
(f)    He saw his general practitioner (GP) had physiotherapy and continued to work. He was given medication and was referred to a neurosurgeon who did not advise further treatment.
(g)    The claimant complained of pain at the base of the neck and over his right shoulder, interscapular and thoracic spine pain, intermittent lower back pain. Certain activities aggravated his pain.
(h)    In terms of his current treatment, at the time he was examined, Mr Cane said he had a massage once every two months, took Panadol and Nurofen intermittently, but was having no formal physiotherapy and only saw his GP when needed.
Assessor Bodel’s examination notes:
(a)    The claimant sat comfortably and undressed without difficulty but rose slowly from his seat.
(b)    Cervical spine - the claimant had tenderness, guarding on the right side, reduced range of motion particularly to the left, asymmetry of movement / dysmetria. There were no clinical signs of radiculopathy.
(c)    Thoracic spine - appeared to be normal with no neurological abnormalities.
(d)    Lumbar spine – he had ‘very mild discomfort’ in the back when flexing forward. There were no abnormal reflexes or sensory impairments and no clinical signs of radiculopathy.
(e)    There was mild wasting in the right shoulder girdle and tenderness over the right rotator cuff. There was restricted range of motion in all six planes in the right shoulder and mild impingement but no instability in the right. There were no clinical signs of radiculopathy.
Assessor Bodel considered the insurer’s submissions and noted the claimant’s accident was “minor” and that his condition had improved with physiotherapy. He disagreed with the insurer’s submission that the claimant had returned to full duties noting the claimant had returned to modified duties. Assessor Bodel was under the impression the claimant had returned to martial arts but not to the same extent as before the accident.
Assessor Bodel noted the radiology. On reviewing the MRI from 21 November 2017 and comparing it with the one from 13 March 2019 he noted minor changes at C5/6 and C6/7 but with no signal cord or nerve root compromise.
Assessor Bodel records the gradual resolution of symptoms. He agreed with Dr Sean Low there was a whiplash disorder. The Assessor recommended a return to exercise to improve the claimant’s fitness
Under the heading “comments on consistency”, Assessor Bodel said:
“This gentleman’s clinical presentation is consistent with a soft tissue musculoligamentous injury (whiplash associated disorder) involving the cervical spine, mild rotator cuff pathology involving the right shoulder and soft tissue contusions to the interscapular region of the thoracic spine and the lower part of the back as a consequence of the effects of the motor vehicle accident.”
Assessor Bodel set out at paragraphs 21 and 22 what treatments should be allowed as caused by the accident and reasonable and necessary in the circumstances. He then certified the following as related to the accident and reasonable and necessary:
(a)    Radiology in relation to neck, right shoulder and lower back to date of assessment from the date of accident to the date of medical assessment.
(b)    General practitioner consultations in relation to the neck, right shoulder and lower back from the date of accident to the date of medical assessment.
(c)    Physiotherapy consultations in relation to the neck, right shoulder and lower back from the date of accident to the date of medical assessment.
(d)    Specialist consultations in relation to the neck, right shoulder and lower back from the date of accident to the date of medical assessment.
(e)    Medications in relation to the neck, right shoulder and lower back from the date of accident to the date of medical assessment.
(f)    Proposed domestic assistance for care arising from injuries to the neck, right shoulder and lower back from the date of assessment and continuing for the claimant’s life expectancy.
In terms of care and assistance in the past the Assessor certified:
(a) 0-8 hours a week from 1 November 2017 – 11 December 2019 (110 weeks) was reasonable and necessary and related to the injuries caused by the accident, and
(b) 0-6 hours a week of commercial assistance for the remainder of the claimant’s life expectancy was also reasonable and necessary and related to the injuries caused by the accident.
Assessor Bodel noted that the precise hours were to be referred back to the Commission for assessment by an occupational therapist.
Assessor Bodel then certified the following as reasonable and necessary and related to the injuries caused by the accident:
(a)    0-20 tablets per week from the date of the assessment for the rest of the claimant’s life. The type of tablets is not specified.
(b)    0-6 consultations per year from the date of assessment for the rest of the claimant’s life. The type of consultation is not specified.
(c)    0-12 consultations per year from the date of assessment for the rest of the claimant’s life. The type of consultation is not specified.
(d)    0-5 imaging investigations from the date of assessment for the rest of the claimant’s life. The type of imaging and the area of the body to be imaged is not specified.
(e)    0-12 consultations per year from the date of assessment for the rest of the claimant’s life. The type of consultation is not specified (and the wording is identical to (c) above.
(f)    0-12 consultations per year with a neurosurgeon from the date of assessment for the rest of the claimant’s life.
(g)    0-12 consultations per year with an orthopaedic surgeon from the date of the assessment for the rest of the claimant’s life.
Assessor Bodel found the following treatments not reasonable and necessary and not related to the injuries caused by the accident:
(a)    palliative treatment for the neck, right shoulder and lower back from the date of accident to the date of assessment (past) and for the remainder of the claimant’s life (future);
(b)    proposed radiological investigations in relation to the neck, right shoulder and lower back injury from the date of the assessment for the remainder of the claimant’s life (future);
(c)    proposed physiotherapy for the neck, right shoulder and lower back injury from the date of the assessment for the remainder of the claimant’s life (future), and
(d)    proposed specialist consultations related to the neck, right shoulder and lower back injury from the date of the assessment for the remainder of the claimant’s life (future)

No resolution

The insurer confirmed that all the treatment allowed by Assessor Bodel was in dispute.
The claimant confirmed that all the treatment not allowed by Assessor Bodel was in dispute with the exception of the palliative care claim which was abandoned.
In the light of the lack of clarity over some of Assessor Bodel’s certifications, the parties confirmed what was in dispute between them as follows:
(a)    Six types of treatment (radiology, medication, general practitioner consultations, physiotherapy, specialist consultations and various amounts and periods of domestic assistance).
(b)    All treatment was disputed on the basis of causation and / or whether the treatment was reasonable and necessary in the circumstances.
(c)    Treatment and care for both past (to the date of assessment) and future (for the remainder of the claimant’s life) were disputed.
(d)    Three areas of the body (neck, right shoulder, lower back) required treatment, and these were disputed.

Insurer’s submissions

The insurer’s main complaint with regards to Assessor Bodel’s decision was with the reasons, or absence of reasons for many of the individual decisions that were made. The insurer submits that there was no clear line of reasoning in support of each and simply a list of treatments provided or to be provided with no explanation.
The insurer also submitted that the Assessor did not consider the insurer’s expert, Dr Rosenthal and his opinions as there is no mention of them in the decision.
The insurer noted inconsistencies within the decision, for example Assessor Bodel had said imaging of the claimant’s neck, lower back and right shoulder was not reasonable and necessary or related to the accident but then said 0-5 imaging investigations per year for the rest of the claimant’s life was reasonable and necessary and related to the accident.

Claimant’s submissions

The claimant notes that the insurer lodged two sets of submissions and the report of Dr Rosenthal. The insurer says that all the issues were ventilated in these submissions and the submissions were before Assessor Bodel.
The claimant argues that Assessor Bodel diagnosed various conditions and that he had considered the statements and the report of Dr Sean Low. The claimant says the Assessor has not referred to all the evidence but only those pieces of evidence relevant to his decision. The claimant says the Assessor did engage with the insurer’s arguments but rejected them.
The claimant says there is no inconsistency in the findings in relation to radiology. The Assessor reviewed he evidence analysed the claims and undertook a subjective examination of the claimant.

Procedural matters

The Panel met by teleconference on 16 February 2022 to discuss the matter following which the Panel issued a report with directions to the parties.
The Panel proposed to the parties that it proceed on the basis that it will first consider the nature and extent of the claimant’s injuries sustained in the accident before the medical members of the Panel apply their clinical judgment and expertise in determining what treatment has been and would be causally related to the injuries sustained in the accident and what of that treatment is reasonable and necessary in the circumstances. The Panel would then deal with the treatment modalities identified in the list.
The Panel did not receive any submissions or objections from either party as to that approach.
The Panel directed the insurer to provide updated GP and allied health practitioner records (noting most of the evidence was over two years’ old) and directed the claimant to provide a chronology of treatment (noting that the claimant’s statement was over two years’ old).
The Panel advised that on the information currently before them, no re-examination would take place because:
(a)    the disputed treatment did not appear to be related to an acute condition requiring immediate attention (e.g. surgery);
(b)    the disputed treatment appeared to be related to the damages claimed and disputed;
(c)    there were medical records and medico-legal reports currently before the Panel;
(d)    in terms of what is reasonable and necessary in the circumstances, the Panel is of the view that the treatment the claimant has had to date will help inform the decisions about past treatment in particular, and
(e)    the additional documents requested if provided are likely to be of additional assistance in determining the medical disputes.
On 14 March 2022, the claimant advised the Panel that the claim for palliative care was made in error and was to be disregarded. The claimant provided a very brief chronology of treatment which indicates when treatment was commenced and ceased.

On 23 March 2022, the Panel received additional documents and information from the insurer as follows:
(a)    updated records from Vale Medical (4 April 2020 to 21 March 2021);
(b)    updated records from Balgowlah Village Medical Practice (as at 22 March 2022);
(c)    Total Physiotherapy advised the insurer that Toby from that practice had advised that the claimant had not attended for treatment since the previous records dated 19 May 2020, and
(d)    Mr Mario Pribicevic, sports chiropractor advised that he would need additional time to retrieve the Phoenix Recovery records from archives. The insurer subsequently advised that despite multiple requests the documents were yet to be provided.

Should the Panel wait for the Phoenix Recovery documents?

The Panel advised the parties it did not intend to wait for the documents and that the Panel would proceed on the basis the claimant had not attended upon his chiropractor in recent times.
The claimant was afforded the opportunity of providing any further evidence by 4 May 2022. No further evidence has been provided.

Should the claimant be re-examined?

In the Panel’s report and directions document, the Panel indicated that no re-examination would take place. The Panel invited submissions from the parties but received none. The Panel is therefore proceeding on the basis that neither party has any objection to the dispute being determined on the papers.
The disputed treatment does not relate to an acute condition requiring immediate attention such as surgery but is related to the provision of particulars of pecuniary losses by the claimant which is linked to a claim for damages. The parties have obtained medico-legal evidence to support their respective positions however the applicant insurer would appear to require a certificate which will bind the decision maker in the assessment of those damages.
The claimant has provided a detailed statement for the two years after the accident. While there is no updated statement from the claimant, the provision of updated medical records and the chronology has assisted the Panel understand the current state of the claimant’s accident-related conditions.
Finally, the Panel notes there is a claims assessment matter before the Commission and in the furtherance of the guiding principle included in section 42 of the Personal Injury Commission Act 2020, the Panel is of the view that a re-examination would cause further delays.
For the above reasons, the Panel is not of the view a re-examination of the claimant is required. The Panel members are confident that, with their experience and expertise, a fair determination of the disputed treatment can be delivered on the papers and without a re-examination.

REVIEW OF THE EVIDENCE

Statements and chronology

There is a statement from the claimant dated 21 November 2019[4]. He says[5]:
[4] Page 29 of the claimant’s bundle.
[5] References in square brackets are to the paragraph number in the statement).
(a)    he was born in England [3], left school at the age of 15 [4] and trained as a roof slater and scaffolder [6];
(b)    after travelling and spending a year in Australia he and his then girlfriend (now wife) migrated to Australia [8]-[11];
(c)    the claimant started off as a construction labourer [11] which “was very physically heavy work” including jackhammering, trench diffing, bricklaying, lifting and moving equipment [12];
(d)    he progressed to lead labourer still working “on the tools” but which had some supervisory duties [14];
(e)    he attended TAFE and obtained his Australian qualifications and in 2008 commenced work as a carpenter [15] working on residential projects. This work was also “heavy work” but he had no problems with his health [16];
(f)    in 2009 or 2010 he hurt his back while surfing sustained a compression of the L5/S1 vertebra, took a week off work and returned to full duties [17];
(g) in 2012/13 he moved to another company as “working foreman” which had aspects of project management but was still “on the tools” [19]. He changed jobs again before moving to a role as “site manager” at Bebo constructions [20]. This role was completely managerial with no work on the tools, but he was required to climb scaffolding, walk across uneven surfaces and help lift and move equipment at times [22];
(h)    before the accident he and his wife shared the housework (1.5 hours a day) but he did all the yard work (2-3 hours a week) [25]-[26];
(i)    the impact of the car that ran into his was forceful and his car was pushed six metres into the intersection [28];
(j)    he was in shock and dazed [30] and immediately felt pain in his neck and lower back [31] but he drove on to work before going to see his doctor [32];
(k) he was referred for scans and given a certificate off work and advised to rest [33] which he did. The pain worsened during the evening [34], he slept poorly and took some Panadeine Forte [35]. He took a few days off work and his wife did everything around the house [36];
(l)    he had obtained a new job before the accident and worked for two weeks but struggled due to pain [37] then had December off before starting his new job in January 2018 [38];
(m)     he tried to surf and participate in jujitsu but could not do for six months [39];
(n)    his new job was as a project manager and no physical work at all [41];
(o)    his wife continued to perform extra housework and the yard work [43] and [53];
(p)    the claimant’s symptoms continued during 2018 until he had a “meltdown” in November and his doctor told him to return to his recreational pastimes despite the pain [46];
(q)    he commenced a new job in January 2019 as a site manager which requires work lifting and retrieving tools for his team [48];
(r)    he had physiotherapy which gave temporary relief [49];
(s)    he has returned to surfing and jujitsu but not to the same extent [51]-[52], and
(t) he takes Voltaren “almost daily” [55].
Mr Cane’s wife Trisha Smith has also provided a statement dated 28 January 2020[6]. The detail of their relationship is consistent with her husband’s. She confirms they shared the housework and that her husband did the outside work and that before the accident they both did about 10 hours of housework per week.
[6] Page 33 of the claimant’s bundle.
She refers to the accident and the development of symptoms and her husband having a “mental breakdown” due to the pain and his inability to participate in sports. She says he is taking Voltaren and using a rub.
The claimant’s chronology of treatment[7] provided on 14 March 2022 includes the following details:
[7] Document AD3 in the Commission’s electronic file.
(a)    1 November 2017 - date of accident, first consultation with Dr Madan, referral for physiotherapy;
(b)    3 November 2017 – second consultation with Dr Madan and referral for MRI of cervical and thoracic spine;
(c)    6 November 2017 – commencement of physiotherapy;
(d)    21 November 2017 - MRI;
(e)    12 March 2018 – consultation with Dr Madan and referral to Dr Little neuro and spinal surgeon and physiotherapy;
(f)    26 March 2018 – referral to chiropractor;
(g)    8 August 2018 – claimant ceased physiotherapy;
(h)    20 February 2019 – referral for further MRI of cervical spine;
(i)    13 March 2019 – cervical spine MRI;
(j)    21 March 2019 – consultation Dr Little, and
(k)    August 2019 – commencement of yoga and home-based exercises.
According to this chronology the claimant has had no treatment from a health or allied health practitioner for over two and a half years.

Treating records and reports

The Balgowlah Village Medical Centre’s records (Dr Madan)[8] reveal that the claimant attended on Dr Madan on 1 and 3 November 2017 then on 23 November 2017 where the notation is “Injury improving, seeing physio, minimal right-hand symptoms”. On examination there was “No significant tenderness C/Thoracic spine, normal range of motion and right arm normal neuro clinically”.
[8] Page 55 of the claimant’s bundle.
There was also a referral to Total Physiotherapy dated 1 November 2017 and a medical certificate for the claim form.
The next entry is on Monday 12 March 2018 where the claimant reported “Had [exacerbation] of whiplash injury in Jan whilst grappling. Had improved with physio. Ongoing pain”. Another referral for physiotherapy was given on this date.
Also on 12 March 2018 was a referral to Dr Little (neurological and spinal surgeon) however Dr Little did not examine the claimant for almost a year and reported back to Dr Madan on 20 February 2019[9] saying:
(a)    there was immediate right shoulder pain progressing to the paralumbar region;
(b)    the claimant developed ongoing problems with pain in the right scapular region, shoulder and some paraesthesia to the base of the thumb;
(c)    his low back pain improved;
(d)    his neck pain feels creaky but was not terribly painful;
(e)    “overall things have improved”, and
(f)    he felt there was some residual C6 brachialgia but neurologically the claimant was normal “and in an improved scenario”.
[9] Page 61 of the claimant’s bundle.
After a repeat MRI scan, Dr Little reported back to Dr Madan on 21 March 2019[10] that there was severe stenosis at C5/6 on the right [and] at C6/7 but not compressing the nerve or the spinal cord. He thought this was contributing to the pain and foreshadowed surgery or injections if Mr Cane’s condition worsened but otherwise thought Mr Cane had a “neurologically and structurally benign prognosis”.
[10] Page 62 of the claimant’s bundle.
The Manly Medical Centre records (Dr Levenston)[11] reveal:
(a)    the claimant received treatment for a thumb injury sustained during jujitsu in July 2011;
(b)    the claimant’s surfing back injury was treated in December 2011;
(c)    Mr Cane complained of insomnia in April 2014 which was treated with a prescription for Lexapro and then Lexotan and again in October 2014 with further scripts in 2015, 2016, 2017, 2018 and 2019;
(d)    on 24 June 2014 an ultrasound scan of the shoulder was undertaken followed by two ultrasound guided steroid injections and an MRI scan of the right shoulder;
(e)    the claimant had a knee injury in November 2015 which appears to have been a ruptured right medial cruciate ligament which was slow to heal;
(f)    attendance on 26 March 2018 concerning the car accident “now in the hands of lawyers” and “reaggravated [by] Jujitsu” two months ago, wants to see a chiropractor and a referral to Mr Mario Pricevic was given, and
(g)    attendance on 26 November 2018 wanting to go back to martial arts but was advised to be “gentle with exercise until fully fit”.
[11] Page 71 of the claimant’s bundle. There are medical records within this bundle that do not relate to this claimant but relate to what appears to be other patients of the practice. These have obviously not been considered.
The Total Physiotherapy[12] notes reveal:
(a)    a first attendance on 6 November 2017 with reports of pain to the neck and back left part of the lumbar, started getting sore across the shoulders and top of the neck. Almost feels a little electric. Everything feels tight now. There was diagram completed colouring the spine right shoulder and right-hand numbness. Pain down the spine to the lower back on the left;
(b)    27 November – “has been at work today and wasn’t too bad”.
(c)    16 December 2017 – “has been back doing some training and [definitely] noticed the range of motion has increased in thoracic and neck but there is still some tension to the lumbar”;
(d)    1 February 2018 “has been going really well, back to training and seems pretty good, there is some pain though after training to the left side of the cervical/thoracic junction”;
(e)    29 March 2018 – the pain chart has changed with only red shading on the right side of the neck and top of the scapula/shoulder blade;
(f)    16 May 2018 – the claimant had returned to the gym and spear fishing and had some increased symptoms;
(g)    28 May 2018 – able to surf a fair bit and on 4 June “has been surfing heaps over the weekend”, and
(h)    the last treatment was 18 June 2018.
[12] Page 224 of the claimant’s bundle.
The Vale Medical Practice (Vale) notes printed as at 21 March 2022[13] contain details of an attendance in January 2021 for insomnia and the prescription of Lexotan. There was a further attendance in March for matters unrelated to the accident and for personal issues which led to a mental health plan being developed on 9 March 2021. There are no further entries, in other words the claimant has had no treatment at Vale for any condition for over a year.
[13] AD5 in the Commission’s electronic file.
Updated records from Balgowlah Village Medical Practice[14] printed as at 22 March 2022, reveal no entries since 20 August 2020. That last entry includes the following:
“History - Well. General Health Review. No symptoms. No CP [cervical pain]. Still grappling / jujitsu.
Examination – Normal C spine [range of motion]. Normal [upper limb] tone/power/reflexes/sensation. Chest clear.
Stable medically. I am more concerned about his [musculoskeletal health] and the things that he gets up to – now doing kite surfing – discussed taking safety precautions.”
[14] AD6 in the Commission’s electronic file.
The claimant had a right-hand injury in October/November 2019 while playing combat sports (presumably jujitsu) and there have been other attendances but no apparent accident-related consultation since March 2018. There is an entry dated 24 January 2020 suggesting Dr Madan provided a report for the claimant’s lawyers.

Other documents

The police report of the accident[15] notes front offside damage to the GIO’s insured vehicle and rear damage to the claimant’s vehicle. The history of the accident was that the claimant had stopped at the white line of an intersection as traffic was banking up (presumably to keep the intersection clear) and the insured vehicle collided with the rear of the claimant’s vehicle. The police report notes that the police did not attend the accident scene.
[15] Page 64 of the insurer’s bundle.
The insurer has provided photographs of its insured vehicle which appear to have come from a property damage file. There are many photographs, many of which are unclear and irrelevant (including the vehicle identification number). The photograph of page 273 is perhaps the clearest showing the Hyundai van with what appears to be significant damage to the right-hand front and bonnet.
Photographs of the claimant’s vehicle have been provided and the one on page 268 of the claimant’s bundle shows a work type utility with a tray and a bull bar. There is damage to the passenger side rear brake and indicator light. The tray and other parts of the rear end of the claimant’s vehicle show rust damage but no other impact type damage which is obvious to the Panel.

Medico-legal reports

Dr Silva examined the claimant on 29 October 2018 and wrote a report for the insurer dated 2 November 2018[16]. He has a history of the car accident and $400-$500 worth of damage to the claimant’s Hilux although more to the other car.
[16] Document AD8 in the Commission’s electronic file.
The claimant says immediately after the accident he felt pain over the right scapular with some low back pain. He exchanged details, went to work and then saw his doctor.
Dr Silva has a report of three days off work and then a further absence on one day, over two months later.
The claimant said that, at that time he had been to the doctor two or three times and had been to a physiotherapist two or three times and had been given a prescription but avoided pain medication.
The claimant reported that two months after the accident he returned to martial arts and felt further right scapular pain.
Dr Silva records that the claimant consumes no medication but does his own exercises and yoga and is not participating in martial arts.
On examination Dr Silva records some tenderness over the right scapula towards the midline at about T6 and there was restricted motion in left sided flexion and rotation. Dr Silva considered the claimant had a 5% whole person impairment in relation to the neck injury. There was painful restriction of right shoulder abduction movements but no rotator cuff tenderness. The thoracic and lumbar spine examination were essentially normal. Dr Silva though the claimant had fully recovered from his lower back injury but had continued symptoms including shoulder restriction as a result of the soft tissue neck injury.
Dr Khan has provided a report to the claimant’s lawyers dated 19 December 2018[17]. He takes a history of the accident and the early treatment that is consistent with the claimant’s statement. He notes three courses of physiotherapy but persistent symptoms in the right shoulder blade. He also has a history of a referral to a neurosurgeon which was not approved by the insurer.
[17] Page 39 of the claimant’s bundle.
Dr Khan was told the claimant had two lots of two to three days off work and that his friends helped out at home with heavier housework and lawn-mowing after the accident.
The claimant reported neck pain on the right side of the base of the neck radiating into the right scapula, pain in the right upper thoracic region, intermittent pain in the lower back, episodes of numbness in the right hand but no symptoms in the left arm or radicular symptoms in the legs.
Dr Khan reports the claimant was able to drive and “do most of his household chores”. Mr Cane had returned to surfing but not martial arts.
Dr Khan had a history of the previous lower back injury which was said to have taken six years to recover.
In terms of medication Dr Khan noted the claimant had taken Panadeine Forte but now used over the counter pain relief and sleeping tablets.
He reviewed the radiology noting foraminal narrowing at the right side of C5/6 and C6/7 which he thought could account for the claimant’s righthand numbness.
On examination, Dr Khan noted restriction of some neck movements, satisfactory range of motion in the shoulders and normal movements of the thoracic and lumbar spines.
Dr Khan diagnosed musculoligamentous injury, facet joint and trauma to the neck, musculoligamentous injury and facet joint strain of the thoracolumbar spine, musculoligamentous injury of the lumbosacral spine, non-verifiable radicular symptoms in the right upper limb and psychological sequelae.
In terms of treatment Dr Khan said Mr Cane has had appropriate investigations and treated conservatively but required repeated physiotherapy treatment for periodic exacerbation of his symptoms and neurosurgical referral.
He expressed the opinion the clamant was fit for work but should observe safe lifting practices.
He also expressed the view that:
(a)    domestic assistance for 2-3 hours per week for heavier household chores and home maintenance would be appropriate;
(b)    the claimant was likely to experience intermittent exacerbation of symptoms with intermittent treatment and would require 4-6 visits to his GP per year for a couple of years then on an as needs basis;
(c)    intermittent use of analgesics and anti-inflammatory medications for periodic flare up for “4-5 years or more”;
(d)    intermittent physiotherapy 10-12 treatments per year for periodic exacerbations;
(e)    if his neck and radicular symptoms worsened or persisted a further assessment by his treating neurosurgeon with possible CT guided injections, and
(f)    a referral to a psychologist and a course of counselling.
Dr Sean Low provided a report also to the claimant’s solicitors dated 4 February 2020[18]. His report of the accident and the claimant’s personal and work history is consistent with the claimant’s statement and Dr Khan so will not be repeated.
[18] Page 46 of the claimant’s bundle.
Dr Low noted ongoing neck pain radiating into the right upper shoulder girdle with pins and needles in the right hand particularly after “prolonged gripping”. Also, record is ongoing pain in the thoracic spine and discomfort in the lumbar spine when performing heavy lifting.
The clamant reported taking Voltaren for “breakthrough pain” but no regular attendances on health providers.

Dr Low took a history of a previous (2015) right knee injury and a 10-year-old lower back injury from which he recovered after six months.
The claimant reported difficulty with the domestic activities in particular the gardening difficulties. The claimant said he had stopped martial arts.
On examination, some of the neck movements were restricted, there was normal range of motion in the shoulders. There was tenderness but no guarding in the thoracic spine and normal range of motion in the lumbar spine with no guarding or spasm. Upper and lower limbs were neurologically normal.
Dr Low expressed the view that the claimant has ongoing symptoms affecting his spine and altered sensation of the right hand which has caused reduced physical tolerances and interference with his ability to resume activities of daily living.
Dr Low diagnosed a whiplash disorder grade II with non-verifiable radicular symptoms, soft tissue injuries to the thoracic and lumbar spine and possible right sided carpal tunnel syndrome.
Dr Low thought, in the absence of his wife’s assistance, the claimant would require an hour of gardening assistance and an hour of domestic assistance for the heavier work per week. He also considered the following treatment was necessary:
(a)    nerve conduction studies to explore carpal tunnel syndrome;
(b)    progress MRIs and neurosurgical review if right arm symptoms persisted;
(c)    ongoing medication for “breakthrough pain”;
(d)    regular review (every three months) with his GP, and
(e)    multidisciplinary treatment to manage exacerbations including physiotherapy and exercise physiology.
Dr Rosenthal examined the claimant for the insurer on 26 March 2020[19]. He took a history of the accident and that the claimant drove his vehicle to see his doctor with a sore neck and back. Dr Rosenthal records the claimant had 24 sessions of physiotherapy and was improved but had a flare up after resuming his physical activities but has not stopped jujitsu and has continued a self-managed exercise program.
[19] This report dated 4 April 2020 is found at page 226 of the Insurer’s bundle of documents.
The claimant says his symptoms have persisted and he feels a feeling of tightness between his scapulae, more so on the right which causes difficulty in picking up his son. He gets occasional lower back pain with no leg symptoms and some soreness around his neck but no symptoms around his shoulders. He reported some pins and needles in is thumb index and middle finger of his right hand which affects his ability to spear fish.
Dr Rosenthal notes the claimant takes Brufen, but not every day and Lexotan for sleeping. He undertakes self-managed exercises and uses ice baths.
The claimant reported an injury to his right knee and fractured thumb but said he had “no particular spinal symptoms or injuries prior to the accident”.
Dr Rosenthal has a history of a return to full duties albeit in a changed role. In terms of home duties, the claimant reports trouble with the gardening and that his wife has taken over the lawnmowing. While he has given up jujitsu he continues to surf, spear fish and kite surf “on an irregular basis”.
Dr Rosenthal compared the two MRIs and did not identify any changes but noted degenerative features.
On examination, Dr Rosenthal records:
(a)    no tenderness, muscle spasm or guarding and a full range of neck movement with complaints of pain and discomfort with movement;
(b)    there was a full range of movement in both shoulders;
(c)    there were no neurological deficits in the upper limbs;
(d)    there was some tenderness in the thoracic spine in the right scapula area but thoracic spine movements were normal and there was no radicular complaint or radiculopathy, and
(e)    there was full range of movement in the lumbar spine no neurological deficits in the lower extremities.
Dr Rosenthal diagnosed soft tissue injuries to the neck, thoracic and lower back with pins and needles rated to the neck injury.
Dr Rosenthal thought the claimant was still recovering and that the thoracic spinal soft tissue injury was still causing symptoms and having an impact on his domestic duties.
Dr Rosenthal thought the claimant would recover within the next 12 months but would need continued assistance until then along with analgesia and anti-inflammatories and self-managed exercises.

PANEL FINDINGS

What injuries did the claimant sustain in the accident?

Cervicothoracic spine

The documentation from Dr Madan, the claimant’s GP supports a finding that Mr Cane sustained a soft tissue injury to his cervicothoracic spine in the accident. Dr Madan noted tenderness in the cervicothoracic spine region the day of, and two days after the accident with pain radiating to the right shoulder region and right arm. The claimant was referred for an MRI of his cervical spine and thoracic spine. This improved within three weeks following physiotherapy but was aggravated in January 2018, as recorded in the note of 12 March 2018 while the claimant was “grappling” in a jujitsu manoeuvre.
Following this aggravation, Mr Cane was referred to a neurosurgeon, Dr Little who organised an MRI of the cervical spine which recorded severe stenosis at C5/6 on the right. Dr Little also noted that there was no obvious nerve compression, and a surgical intervention was not warranted. At that time, Mr Cane was neurologically intact with no radiculopathy. The claimant was reported to have a “creaky” neck which was not very painful.
The Panel notes Dr Silva diagnosed a soft tissue neck injury, Dr Khan diagnosed musculo-ligamentous injury to the neck, Dr Low diagnosed a whiplash disorder with non-verifiable radicular symptoms, Dr Rosenthal diagnosed soft tissue injuries and Assessor Bodel had diagnosed Musculo-ligamentous soft tissue injuries.
The Panel is satisfied that the stenosis reported on the MRI is a degenerative finding and not related motor vehicle accident. The Panel is comfortably satisfied that the claimant sustained a soft tissue injury to his neck.
The Panel notes that this soft tissue injury was resolving according to the treating GP and aggravated two months after the accident when he was performing jujitsu. In March 2019 when the claimant saw Dr Little there was further improvement. The Panel notes the claimant’s chronology and GP records suggests he has had no treatment for his neck since the end of 2019 other than one attendance at the Balgowlah Village Medical Practice on 20 August 2020 suggesting the claimant was still practising jujitsu but that he had no cervical pain and normal range of motion in the cervical spine.

Lumbar spine

The claimant had a pre-accident history of a back injury when surfing which allegedly caused compression fractures in his lumbar spine however there is no evidence of any immediate pre-accident lower back problems.
There is documentation in the contemporaneous GP records of a soft tissue injury to the claimant’s lumbar spine in the subject accident. The lower back injury is mentioned in the claim form and the Total Physiotherapy notes also record complaints in the lower back. The claimant has however had no physiotherapy, according to the records since August 2018 and the claimant’s lower back injury does not feature to the same extent as his neck injury in the medico-legal reports.
Doctors Khan, Low and Rosenthal all diagnose soft tissue injuries noting only occasional complaints of pain in the lower back and no indication of radiculopathy or radiating pain in the lower limbs. Dr Silva considered there was a soft tissue injury from which the claimant had fully recovered.
In the history taken by Assessor Bodel, there was intermittent lower back pain, with no localised tenderness on examination and a near-normal range of movement with no signs of radiculopathy in the lower limbs.
The Panel is also comfortably satisfied that the claimant sustained a soft tissue injury to his lower back in the car accident.

Right shoulder

The Panel notes that three years prior to the accident in 2014, Mr Cane had right shoulder pain with an MRI undertaken and he was treated with cortisone injections. It does not appear that any of the doctors (including Assessor Bodel) were made aware of this problem.
The Panel notes the report of Dr Little to Dr Madan includes a history that the claimant had immediate pain to his right shoulder with ongoing pain in the right scapular region. This is not supported by the more contemporaneous records.
It was documented in Dr Madan’s records and the records of the physiotherapist that Mr Cane had early evidence of referred pain from the cervical spine to the right shoulder region, but there was no documentation of any frank or discrete injury to the right shoulder joint.
The Panel is not satisfied that the claimant sustained an actual injury to the right shoulder joint but a referral of pain from the base of the neck into his shoulders and predominantly the right shoulder. In particular, the Panel is not satisfied the claimant has developed rotator cuff issues as a result of the accident. There is no imaging to confirm it and the claimant has had previous right shoulder problems which may explain it. Assessor Bodel is the only examiner who identified rotator cuff wasting and the Panel notes Dr Rosenthal measured a full range of motion in both shoulders.

How do the claimant’s injuries affect him now?

Dr Silva (in November 2018) considered the claimant had essentially recovered from any lumbar spinal injury but had ongoing symptoms in his cervical spine. In the light of Dr Silva’s 5% whole person impairment assessment, it would appear he was of the view the claimant had a permanent neck injury.
Dr Khan (in December 2018) considered the claimant’s prognosis was fair and that he was likely to have periodic exacerbations of his injuries which would require intermittent treatment.
Dr Low (in February 2020) thought the claimant would continue to experience ongoing symptoms and disability for the foreseeable future.
Dr Rosenthal (in March 2020) thought the claimant was still experiencing symptoms but that the claimant was likely to recover in 12 months’ time.
Assessor Bodel (in May 2021) noted the claimant had intermittent lower back pain and pain at the base of the neck and over the top of the right shoulder.
The claimant has continued to work albeit in a different role and has returned to at least some of his pre-accident recreational activities (spear fishing and surfing). Vale Medical Practice centre records suggest that the claimant returned to jujitsu during 2020.
There has been no physiotherapy treatment since 2018 and the chronology of treatment provided by the claimant’s solicitor in March 2022 suggests the claimant has not had any active treatment related to his injuries for over two years although there is a suggestion, he is doing his own exercises and consuming over the counter medication from time to time.
The medical members of the Panel note that in their clinical experience, soft tissue injuries such as those sustained by the claimant have an acute phase but that over time they tend to improve and recover. Having considered the totality of the evidence, the Panel is of the view that while the claimant may be having some symptoms, they are not significant and not so significant that they have required the claimant to seek out medical or allied health treatment for the last two years. This reflects the natural progression of soft tissue injuries which is to be expected.

What treatment has the claimant had to date?

The Panel notes that according to the records the claimant has had treatment to his neck, lower back and shoulder due to the injuries sustained in the accident. The material before the Panel is that he has received the following treatment:
(a)    physiotherapy from Total Physiotherapy until June 2018;
(b)    chiropractic treatment in 2018 - there is a referral for chiropractic treatment but no records have been produced to confirm this;
(c)    an MRI to two areas of his body (cervical and thoracic spine) once and a follow up MRI to the neck in March 2019;
(d)    two consultations with neurosurgeon Dr Little in 2019;
(e)    attendances upon his general practitioners Dr Madan and Dr Levenston up until August 2020;
(f)    he has been given his own exercise program which he follows and he may have had occasional massage and yoga, and
(g)    pain killing medication which may have been prescribed in the acute phase but is now apparently over-the-counter medication taken intermittently.
In addition, the Panel accepts that the claimant has had assistance with heavier domestic, home maintenance and gardening tasks after the accident because of his accident-related injuries and symptoms.

What treatment is reasonable and necessary?

The Panel does not consider that any treatment is specifically required for Mr Cane’s right shoulder as it does not consider the right shoulder joint was injured in the subject accident.
The Panel is satisfied that the claimant’s treatment to date for his neck injury (and shoulder symptoms referred from it) and lower back injury has been appropriate, is causally related to the accident and is reasonable and necessary. The treatment the claimant has had, has resulted in the gradual improvement of his symptoms to a stage where the claimant appears to have made a good, if not almost total, recovery.
The Panel notes the claimant has degenerative changes in his spine which is likely to be related to his age, the heavy work he has done through the years (as set out in his statement and other histories) and his recreational activities in particular the combat sport of jujitsu.
Noting the limited amount of treatment or absence of treatment for almost two years, the Panel is of the view that any future treatment or care proposed by the claimant beyond the date of this assessment is not reasonable and necessary for the claimant’s accident-related injuries.
Dealing with the particular treatment modalities claimed by Mr Cane, the Panel finds as follows:
(a)    Imaging - the claimant has had two MRI scans to date but as his injuries are soft tissue in nature, they do not require ongoing imaging.
(b)    Neurological consultations - the Panel also notes that the claimant has had two neurological consultations but that the treating neurologist advised no further treatment was necessary unless the condition worsened. There is no evidence that in the four years since the claimant saw Dr Little that Mr Cane’s condition has worsened. The claimant does not require ongoing neurological review for his injuries.
(c)    Orthopaedic consultations – the claimant has not seen a treating orthopaedic surgeon in the past and his soft tissue injuries do not require orthopaedic opinion in the future.
(d)    Specialist consultations – there is no evidence of the claimant having had any such treatment in the past or that he requires any other specialist opinion for his soft tissue injuries.
(e)    Physiotherapy – the claimant has not had physiotherapy for almost four years. The Panel considers the Total Physiotherapy consultations reasonable and necessary and causally related. Mr Cane undertakes his own exercises and has returned to his pre-accident sporting pursuits to some extent. While Dr Khan suggested the claimant would need physiotherapy at times of exacerbations of the claimant’s injury there does not appear to be any evidence of exacerbations severe enough to warrant treatment including physiotherapy in the last three years.
(f)    Medications - the claimant was, at the time of the most recent examination (in May 2021 by Assessor Bodel) taking intermittent Panadol and Nurofen. The Panel considers any pain killing medication taken to date to be reasonable and necessary. The Panel notes the claimant had been taking medication for insomnia for years before the accident and does not consider that any such medication is related to the injuries sustained in the accident. There is no evidence (for example in the claimant’s chronology) that he is still consuming medication and in the light of Panel’s findings that Mr Cane’s injuries have totally or almost totally resolved, the Panel is of the view that ongoing medication is not reasonable and necessary.
In terms of the claims for domestic assistance - the panel accepts that the claimant’s wife has provided care and assistance, but that the particular hours and the tasks undertaken have varied. The claimant reported sharing the inside domestic duties and undertaking the outside work before the accident. The panel is of the view that the claimant would have required some assistance with heavier domestic, home maintenance and gardening tasks after the accident and until 20 August 2020 when the notes from the Balgowlah Village Medical Practice record that the claimant had no symptoms, no cervical spine pain, normal range of cervical spine motion and normal upper limb tone, power, reflexes and sensation.
There are no updated statements beyond 2020. Assessor Bodel did not record (in May 2021) any history of the claimant being provided with care and assistance at that time.
The Panel is not satisfied that the claimant has any accident-related need for ongoing gratuitous or commercially provided care and assistance.
The Panel notes that one of the Commission’s occupational therapists will assess the hours of care and assistance that would have been provided to the claimant from the date of the accident to 20 August 2020.

CONCLUSION

In the light of the above findings, the certificate of Assessor Bodel must be revoked.
In accordance with the detailed findings above, the Panel will certify some of the treatment provided as reasonable and necessary and causally related to the accident, but that no ongoing or future treatment is related or reasonable and necessary.

[2022] NSWPICMP 242

31 May 2022