AAI Limited t/as GIO v Johnson

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Johnson [2021] NSWPICMP 234
CLAIMANT:	Shelley Marie Johnson
INSURER:	AAI Limited t/as GIO
REVIEW PANEL:	Principal Member Josephine Bamber Medical Assessor Shane Moloney Medical Assessor Trudy Rebbeck
DATE OF DECISION:	1 December 2021
CATCHWORDS:	MOTOR ACCIDENTS- Review of Medical Assessment under Motor Accident Injuries Act 2017; dispute as to whether eight sessions of physiotherapy recommended on 10 August 2020 are reasonable and necessary treatment and causally related to injuries sustained in motor accident on 18 November 2018; Held - six of the eight recommended sessions of physiotherapy treatment were reasonable and necessary caused by injuries sustained in the motor accident.

Assessment of Treatment and Care - Causation
Certificate issued under the Motor Accident Injuries Act 2017

The following treatment and care:
The request for eight sessions of physiotherapy per the Allied Health Recovery Request No. 7 dated 10 August 2020.
RELATES TO THE INJURY caused by the motor accident.

Assessment of Treatment and Care – Reasonable and Necessary
Certificate issued under the Motor Accident Injuries Act 2017

The following treatment and care:
Six of the eight sessions of physiotherapy per the Allied Health Recovery Request No. 7 dated 10 August 2020.
IS REASONABLE AND NECESSARY in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Miss Shelly Johnson was involved in a motor accident on 18 November 2018. She was a pillion passenger on a motorbike, when the front tyre locked and as a consequence, she was thrown off the bike and sustained multiple injuries. These injuries included a wrist fracture and an alleged injury to her back, amongst other injuries.
On 15 July 2019, she was carrying a washing basket and walking down the stairs at her home and then experienced an acute spasm in her back. It is alleged this caused her to fall sustaining an injury to her left knee.
On November 2019, she underwent a left knee arthroscopy with ACL reconstruction, medial meniscectomy and chondroplasty performed by Dr Stackpool.
On 8 March 2020, Ms Johnson sustained a further injury, described as a left calf strain that occurred while attempting to navigate some slippery surfaces.

ISSUES IN DISPUTE

The dispute between the parties is confined to the request for eight sessions of physiotherapy treatment as set out in the Allied Health Recovery Request (AHRR) No. 7 dated 10 August 2020.
The issues to be determined on the Review are as follows:
(a) whether such treatment is related to injury caused by the motor accident on 18 November 2018, and
(b) whether the above-mentioned treatment is reasonable and necessary treatment.
The main issues in relation to causation relates to the following:
(a)    whether Ms Johnson suffered an injury to her lumbar spine in the motor accident on 18 November 2018;
(b)    if so, whether Ms Johnson suffered from spasm in her lumbar spine on 15 July 2019 resulting from the injury she sustained to the lumbar spine in the motor accident on 18 November 2018;
(c)    if so, whether the left knee injury sustained by Ms Johnson on 15 July 2019 was caused by the lumbar spasm, and
(d)    whether the left calf injury on 8 March 2020 was causally related to the motor accident on 18 November 2020.

BACKGROUND

At the time of the motor accident on 18 November 2018 the motor cycle upon which Ms Johnson was a passenger was travelling at approximately 100 kph. She was thrown from the motor cycle approximately 30 to 40 metres onto the roadway[1].
[1] Description in NSW Ambulance record, A14.
Following the motor accident, Ms Johnson was transported by ambulance to Wollongong Hospital where she underwent an open reduction and internal fixation of her left wrist, which was fractured in the accident.
On 10 December 2018 Ms Johnson served her Application for Personal Injury Benefits form dated 4 December 2018 in which she refers to injuries sustained in the accident, including to her low back[2].
[2] A4.
AAI Limited t/as GIO[3] (the Insurer) concedes it is the relevant insurer with liability to pay to Ms Johnson statutory compensation entitlements under the Motor Accidents Injuries Act 2017 (the MAI Act). On 7 January 2019 the Insurer accepted liability to pay statutory benefits up to 26 weeks and on 8 March 2019 it issued a “Liability Notice- Benefits after 26 Weeks” accepting liability for statutory benefits after 26 weeks[4].
[3] The name of the insurer has been amended to reflect the correct legal entity.
[4] A4.
The insurer has subsequently approved and paid for various treatment for Ms Johnson. However, a dispute has arisen between the parties in relation to one treatment request.
On 10 August 2020 Ms Johnson’s physiotherapist, Ethan Miles from Gerringong Physiotherapy, forwarded to the insurer AHRR No.7 seeking their approval for further treatment to be provided to Ms Johnson[5].
[5] A2 and A4.
AHRR No 7 refers to a diagnosis of left knee injury and reconstruction on 1 November 2019 and notes “Additional calf strain has occurred since her initial injury whilst this patient is also suffering NSLBP as a result of her modified gait pattern from both the calf and the knee.” The client goal was to be able to lift 30 kg without an increase in pain in her knee. The treatment sought was one session of physiotherapy for four weeks and one session per fortnight for eight weeks.
On 20 August 2020 the insurer declined the request for treatment and on 8 September 2020 Ms Johnson’s solicitors sought an internal review of this decision, forwarding medical reports from Dr Cossetto for the insurer’s attention[6].
[6] A3.
On 18 September 2020 the insurer issued its Internal Review Decision[7] maintaining their dispute relating to the treatment sought in AHRR No.7.
[7] A4.
On 17 December 2020 Ms Johnson filed a Dispute Resolution Service (DRS) Application in relation to this treatment dispute together with submissions and supporting documents.
On 22 January 2021 the insurer filed a Reply to that Application including its submissions and supporting documents (most of which were in Ms Johnson’s documents).
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
(1) An injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses") incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
A medical dispute about a claim is determined in accordance with section 7.20 of the MAI Act by a medical assessor. Accordingly, the President referred the dispute for assessment by Medical Assessor Condie, who on 10 May 2021 issued her Certificate under section 7.23(1) of the MAI Act in which she found that the treatment relates to the injury caused by the motor accident and that it was reasonable and necessary.

The Review

On 10 June 2021 the insurer filed an Application seeking a Medical Review of Medical Assessor Condie’s certificate, within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[8]
[8] Section 7.26(10) of the MAI Act.
On 12 July 2021, the President’s Delegate referred the medical assessment to the Review Panel (the Panel) as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[9]
[9] Section 7.26(5) of the MAI Act.
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 clause 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[10] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission). On 15 October 2021 the Commission constituted the present Panel and arranged for the Panel members to hold a telephone conference on 25 October 2021.
[10] Section 7.26(5A) of the MAI Act.
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[11].
[11] Section 41(2) of the PIC Act.
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[12].
[12] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[13]
[13] Section 7.26(6) of the MAI Act.
On 12 November 2021 the Panel issued to the parties an Interim Report and Direction listing the documents before the Panel and requesting that both parties confirm that these documents comprise the entirety of the material being relied upon in relation the Review.
The Panel also advised the parties that it proposed determining the matter ‘on the papers’. While the Panel is conducting a new assessment, the Panel considers a physical examination is not required, due to the fact that the regime of treatment which is in dispute is confined to eight sessions of physiotherapy recommended in AHRR No. 7 dated 10 August 2020 and the time that has elapsed since that recommendation was made. The Panel also considers a physical examination of Ms Johnson now will not assist in the determination of the causation aspect of the dispute.
Both parties agreed to an assessment on the papers. However, the claimant’s solicitor in their response dated 19 November 2021 advised “Ms Johnson has now actually undergone the physiotherapy treatment which was initially declined by the CTP insurer, The CTP insurer ultimately covered the cost of the treatment.”
Given that the dispute before the Panel was confined to the claim for treatment in AHRR
No. 7 dated 10 August 2020 and it appeared this had been in fact paid by the insurer, the Panel issued a further direction to the parties on 24 November 2021 advising the parties that in these circumstances the Panel considers the proper course of action is for the Application for Review, which was filed by the insurer, to be discontinued. Alternatively, the Panel is considering referring this matter to the President or Division Head to consider making an order under section 54 of the PIC Act to dismiss this Application because it is lacking in substance. A timetable was set out for the parties response.
On 29 November 2021 the insurer’s solicitor, Ms Helene Tretheway, responded as follows:
“It appears that further physiotherapy treatment in 2021 has been paid in error. As is indicated by the correspondence the insurer has not approved AHHR no.7 and has subsequently declined a further request. The insurer maintains there is a dispute, and that the further physiotherapy treatment is neither reasonable and necessary, nor related.”
It appears at the same time of this response the insurer lodged in the Motor Accidents portal additional documents being a letter from GIO dated 18 October 2021 declining treatment request in physiotherapy plan No. 8 together with a copy of that plan.
The Panel finds that this material is not relevant to the dispute before it, which is confined to the AHRR No. 7.
Because of the insurer’s response, the Panel has decided that it should proceed with the Review.

Outline of relevant evidence

It is helpful to briefly outline the relevant evidence to give context to the issue of AHRR No. 7.
In the NSW Ambulance Electronic Record, it is noted Ms Johnson had multiple abrasions to her upper lip, chin right fingers and hand and also complained of left wrist pain and decreased movement, abrasion to right upper thigh. She denied neck pain. It is recorded that bystanders stated that she travelled 30 to 40 metres through the air at approximately 100 kms p/h and rolling[14].
[14] A14.
The Wollongong Hospital Discharge referral form focuses mainly on the treatment to the comminuted intra-articular distal radial fracture of the left wrist. No mention is made of the low back[15].
[15] A16.
In her claim form Ms Johnson refers to injuries being sustained in the motor accident on 18 November 2018 to her left arm and hand, broken wrist requiring surgery on 29/11/18 at Wollongong Hospital, right hand and arm, right leg, face and mouth, back- mainly lower back and neck and psychological injury[16].
[16] A4.
On 23 November 2018 Dr O’Brien, general practitioner Shell Cove Family Health, recorded his consultation notes in his Patient Health Summary the circumstances surrounding the motor accident on 18 November 2018[17]. He diagnosed she had a comminuted fracture of the left distal radius and had grazing to her face and hands. In his entry on 18 December 2018 Dr O’Brien noted Ms Johnson had been getting some coccyx pain since the accident and she had been using analgesia more for that than her arm. Dr O’Brien issued a certificate of capacity citing injuries including “abrasion to face, legs and bruising to arms plus fracture left wrist and coccyx pain”. The certificate sets out a number of physical restrictions including, but not limited to, a reduced sitting and standing tolerance.
[17] A12.
On 14 January 2019 Dr O’Brien issued a referral to Shell Cove Physiotherapy requesting treatment of her left wrist following the surgery. The doctor also noted that Ms Johnson “has also been suffering from back pain since the motorcycle accident and would benefit from your input regards this too.”[18]
[18] A18.
On 4 February 2019 Ms Johnson consulted Dr O’Brien who noted she had experienced an “issue with back last 4 days… felt like it went into spasm 3 days ago. Just aching.”[19] The doctor records his examination findings of her back noting she had tenderness more lateral to her spine on the left over the paraspinal muscle. He prescribed Diazepam for muscle spasm. Further prescriptions for Diazepam were issued at the consultations on 15 February 2019 and 16 April 2019.
[19] A12.
Ms Johnson was treated at Gerringong Physiotherapy by Mr Ethan Miles who has issued a number requests to the insurer seeking their approval for treatment. In AHRR No 1 dated 7 February 2019 Mr Miles refers to the diagnosis of the left wrist fracture and low back pain and bruising. The treatment request was for eight physiotherapy sessions to be undertaken twice a week to both body areas to maximise treatment while Ms Johnson was still off work. This regime of physiotherapy was approved by the insurer on 14 February 2019[20].
[20] A4.
Mr Miles reported to Dr O’Brien on 13 February 2019[21] and after dealing with the left wrist, stated that Ms Johnson was “tender through the distal sacrum and coccyx on palpation and experiences some ‘belt line’ pain occasionally and has slightly reduced flexion and lateral flexion through her lumbar spine”. Mr Miles stated that he had prescribed some lumbar mobility exercise and would provide a sacral/coccyx offloading pillow. On 22 February 2019[22], 12 March 2019[23] and 10 April 2019[24] Mr Miles reported further about the wrist and back treatment. In the March report Mr Miles noted that her “lumbar spine appears to also manifest as a constant ache, worsening with certain activities”. He mentions she would benefit from referral to a psychologist to reduce further the effects of the accident.
[21] A19.
[22] A20.
[23] A21.
[24] A22
In AHRR No 2 dated 7 March 2019 (signed 12 March 2019) the request was made for a further eight sessions of physiotherapy treatment for both body areas, being the left wrist and lumbar spine, together for eight gym sessions and gym membership for three months. The client goal was to be able to gain full wrist movement in two months and to be able to return to work in three months. The insurer approved eight sessions of physiotherapy on 23 March 2019[25].
[25] A4.
In a consultation with Dr O’Brien on 2 May 2019 it is recorded that she had put on a lot of weight since the motor accident.
In AHRR No 3 dated 22 May 2019 Mr Miles sought one session of physiotherapy treatment per week for eight weeks and eight gym sessions. The client goal was for Ms Johnson to be able to return to work in full duties but only for two days per week, in two months, with pain free in her lumbar spine. Examination findings are recorded for the left wrist, lumbar spine and lower thoracic regions.
On 9 July 2019 Dr O’Brien noted Ms Johnson still had back and wrist pain[26].
[26] A12.
On 18 July 2019 the insurer wrote to Mr Miles, referring to a request dated 18 June 2019, and approved gym membership for three months[27].
[27] A4
On 15 July 2019 Dr Power, radiologist, reported to Dr Rekha Balgi, PHC Dapto Medical Centre[28]. The clinical history is recorded “left knee gave way, low back pain”. The results of x-rays of the lumbosacral spine, pelvis and bilateral knees are set out. In the lumbar spine at SI joint mild degenerative change was present.
[28] A25.
On 19 July 2019 Ms Johnson saw Dr O’Brien who recorded
“back went into spasm and knee gave way. ? dislocated and landed on knee. Felt it snap back in when she stood up. Unable to straighten knee since. This was 15/7/19. Went to ED but wait too long. Went to Dapto medical centre…”
Dr O’Brien recorded his examination findings and noted his impression “?medial meniscal tear”. He also diagnosed muscle spasms and prescribed Diazepam.
On 23 July 2019 a MRI scan of the left knee was performed and has the history “knee gave way and fell onto knee. Unable to extend, Medial joint pain.” The findings included a displaced bucket handle tear of the medial meniscus. It was noted that the torn proximal ACL was likely to be chronic. The radiologist explained in the body of the report that the “ACL appears irregular and torn at the femoral origin, the proximal aspect of the ligament may be scarred to PCL and the posterior intercondylar capsule. This is likely to be nonacute…[29]”
[29] A26.
On 24 July 2019 Dr O’Brien referred Ms Johnson to Dr Bhimani noting her back went into spasm on 15 July 2019 and her knee gave way and she landed on her left knee[30].
[30] A27.
On 7 August 2019 Dr Stackpool, orthopaedic surgeon, reported to Dr O’Brien. He refers to the history of the motor cycle accident with surgery to the left distal radius and lower back pain. He advises that four weeks prior to his consultation Ms Johnson was holding some washing and her left knee gave way and she developed pain, swelling and locking. He notes she denied any significant prior symptoms before this point. Dr Stackpool refers to the MRI scan revealing she suffered from a displaced bucket handle tear of the medical meniscus and a chronic ACL tear with remaining ligaments being intact. There was a moderate amount of lateral retropatellar chondral wear with some mild tibiofemoral wear. Her lateral meniscus and remaining ligaments were intact. The doctor recommended an ACL reconstruction with potential meniscal repair. Dr Stackpool does not express an opinion in this report about whether this left knee injury is causally related to the motor cycle accident[31].
[31] A28.
In a partial copy of a WorkCover NSW - Certificate of capacity dated 26 August 2019[32] Dr O’Brien states:
“She has been having back spasms since the accident. She reports her back went into spasm on 15/7/2019 whilst she was carrying a washing basket down the stairs. This caused her knee to give way. She landed on her knee and she has been unable to straighten the knee since. MRI has shown bucket handle teat of medical meniscus and ACL tear- she has been seen by a knee surgeon and surgery is awaited. She was not having back spasms prior to the accident.”
[32] A4 p 128.

AHRR No 4 dated 2 September 2019 added to the diagnosis “knee injury (ACL, MCL, meniscus etc.)”. Examination findings are recorded for the three areas being the wrist, lumbar spine and left knee. The client goal in this plan was for her to walk pain free with equal WBing bilaterally and equal step lengths in one month and noted that surgery was to take place in November so the goal would change following the surgery. The actual service sought was “standard- 2 area. With one session per week for 8 weeks”. The rationale for services requested stated “We will be continuing to progress Shelley’s strength and Wbing tolerance in her LL prior to surgery to give her the best chance on a quick recovery and RTW following surgery. I believe her back will continually benefit from ongoing gym work.” On 11 October 2019 the insurer approved the regime of treatment sought.
On 6 September 2019 Ethan Miles reported to Dr O’Brien advising that Ms Johnson was struggling with mobility in her knee but was increasing in strength. He stated that he was going to attend to gym with Ms Johnson to go through a knee, lumbar spine and wrist strengthening program in order to manage her previous injuries. He was also going to get her in the clinic weekly. He noted that Ms Johnson was working with her psychologist[33].
[33] A29.
On 26 September 2019 Ms Johnson saw Dr O’Brien complaining of back pain. He noted she was moving house, moving lots of boxes and was using 2 diazepam at night, three times a week[34].
[34] A12.
On 18 October 2019 Mr Miles reported to Dr O’Brien in which he noted moving house caused some increase in back pain, which he stated had since subsided[35].
[35] A30.
On 1 November 2019 Dr Stackpool performed an arthroscopic left ACL reconstruction, partial medial meniscectomy and chondroplasty[36].
[36] A31.
Dr Toby Jackson, a general practitioner at Shell Cove Family Medical, took over Ms Johnson’s care from 7 November 2019 noting in his clinical entry that Dr O’Brien was leaving the practice[37].
[37] A12.
On 11 November 2019 and again on 7 December 2019 Mr Miles sought approval for three- month gym membership and 5 x 1:1 hydrotherapy/gym sessions.
On 15 November 2019 Dr Stackpool reported in relation to Ms Johnson’s progress since the left knee surgery[38].
[38] A32.
AHRR No. 5 dated 19 November 2019 in the diagnosis section only refers to the left knee injury and reconstruction on 1 November 2019. It seeks one session of physiotherapy for a week for eight weeks, 2 x week attendance for six weeks at PhysioWork Physiotherapy Class.
On 20 December 2019 Dr Stackpool reviewed Ms Johnson noting she was progressing well and was walking with a near normal gait. He stated she was attending physiotherapy[39].
[39] A34.
On 10 January 2020 Mr Miles reported to the general practitioner in relation to treatment of her left knee post-surgery[40].
[40] A33.
AHRR No. 6 dated 5 March 2020 has the same diagnosis in plan No. 5 and seeks 2 x weekly for eight weeks for gym out of clinic sessions.
On 10 March 2020 Ethan Miles reported to the general practitioner that over the weekend Ms Johnson had strained her left calf complex while walking on wet surfaces in Sydney. He states prior to the injury she was walking tentatively due to her lack of confidence in her left knee following the surgery and Mr Miles stated he believed this led to an overload through her calf complex when she had gone to take a step[41].
[41] A4 and A35.
On 12 March 2020 Dr Jackson in his clinical notes recorded that on 8 March 2020 Ms Johnson was walking on a wet public footpath and was very nervous doing this as she had lost a lot of confidence walking on uneven or slippery surfaces since her knee injury. He states with her tentative walking she felt a sudden pain in her left calf, consistent with a calf strain. He states this is very unlikely to have occurred pre-injury and he believes it is related to the road accident and the injuries that have followed it. He adds he has suggested two weekly physiotherapy sessions, one on one, to address the calf strain.
On 28 April 2020 Dr Jackson saw Ms Johnson and referred her for an ultrasound of her left calf as it was still sore when walking.
On 5 May 2020 Ethan Miles reported to Ms Johnson’s solicitors[42]. He noted that in his initial treatment on 5 February 2019 in addition to the left wrist fracture, she sustained bruising to her coccygeal region with associated back pain. Mr Miles expressed the opinion that the motor accident did contribute to the pain Ms Johnson experienced in her lower back as a result of the unexpected force and impact of the event. He stated he was unaware that she had any back pain or injuries prior to the motor accident. Mr Miles expressed the further opinion that the ongoing back pain and reported lumbar spasms have resulted from the accident and additionally, the psychological impact for the accident has contributed to ongoing lumbar spasms and guarding which are not solely musculoskeletal in origins. He states that the spasms and associated pain could be the cause of poor/ protective movement patterns as a result of her anxiety and reported PTSD.
[42] A11.
In the abovementioned report Mr Miles opined that the unsteadiness in gait when Ms Johnson’s back was flaring up and the difficulty carrying loads due to her wrist surgery contributed to her sustaining the subsequent left knee injury. He adds that it is unclear regarding the origin of the ACL tear as the MRI reported it as chronic. Mr Miles outlines the treatment he has provided to Ms Johnson and recommendations regarding further treatment.
On 12 May 2020 Dr Jackson noted in his clinical note improvement in the left calf and that her knee and back had been a bit better in the last week[43]. He adds “continue physio, graduated return to activities”.
[43] A12.
On 29 July 2020 Dr Toby Jackson reported to Ms Johnson’s solicitors[44]. Dr Jackson refers to the history recorded by Dr O’Brien in relation to the motor accident. He states he can see no history of documented back spasms before 15 July 2019. He opines that Ms Johnson sustained an injury to her lower back in the accident and that this materially contributed to the subsequent left knee injury. He states on 15 July 2019 she was carrying a washing basket and walking down stairs when her back went into spasm and this caused her knee to give way. He says she landed on her knee and she has been unable to straighten her knee since. Dr Jackson also refers to the incident on 8 March 2020 when Ms Johnson was walking on a wet footpath and since her knee injury felt a loss of confidence walking on uneven or slippery surfaces. Dr Jackson records that upon such tentative walking she felt a sharp sudden pain in her left calf, consistent with a calf strain. He opines it is very unlikely that this would have occurred pre-injury and he relates it causally the motor accident.
[44] A10.
AHRR No. 7 dated 10 August 2020 refers to a diagnosis of left knee injury and reconstruction on 1 November 2019 and notes “Additional calf strain has occurred since her initial injury whilst this patient is also suffering NSLBP as a result of her modified gait pattern from both the calf and the knee.” The client goal was to be able to lift 30 kg without an increase in pain in her knee. The treatment sought was one session of physiotherapy for four weeks and one session per fortnight for eight weeks.

On 5 August 2020 Dr David Cossetto, orthopaedic surgeon, reported to Ms Johnson’s solicitors in his capacity as an independent non treating specialist. He has the history that Ms Johnson was thrown 40 metres in a backwards direction from the motor cycle onto the roadway. He noted she was taken by ambulance to Wollongong Hospital where she underwent an open reduction and internal fixation of the left distal radial fracture. Dr Cossetto noted that Ms Johnson had seen her general practitioner in relation to the onset of lower back pain which had been present only since the accident.
Dr Cossetto also has the history that in July 2019 Ms Johnson was carrying a washing basket walking down asset of stairs at her home and she experienced an onset of a painful spasm in her back causing her to fall and in the process, she sustained a significant twisting injury to her left knee. The doctor refers to the MRI scan and the fact that she underwent on 1 November 2019 a left knee arthroscopic ACL reconstruction with medial meniscectomy.
Dr Cossetto also records the history that in March 2020 Ms Johnson sustained a left calf strain injury whilst attempting to navigate some slippery surfaces in wet conditions, as a result of her sense of insecurity with her left knee, fearing the possibility of reinjuring that joint. He states that a proximal gastrocnemius strain was diagnosed. The Panel notes that the gastrocnemius is commonly known as the calf muscle. Dr Cossetto opines that the motor bike accident materially contributed to Ms Johnson’s lumbosacral spine injury and her left knee injury is a consequence of the injury sustained in the motor bike accident.
On 11 August 2020 Dr Toby Jackson issued a WorkCover NSW – certificate of capacity in which he sets out a management plan which included physiotherapy weekly (back spasms, knee pain, calf pain secondary to injuries), restart gym and swimming.
On 20 August 2020 GIO wrote to Ms Johnson declining the request made by Gerringong Physiotherapy on 10 August 2020. The reason given for the declinature was:
“Following a review of the treatment provided to date, we consider that sufficient physiotherapy has already been provided to date to address your motor vehicle accident related injuries and any further treatment would be considered not reasonable and necessary in the management of your injuries. At this stage you should focus on self-directed independent gym and home exercise program.”
Dr Cossetto provided a supplementary report dated 5 November 2020 in which he expressed the opinion that the left knee injury is related to the accident. He states the injury to Ms Johnson’s back and the subsequent spasmodic discomfort was a materially contributing cause of the fall. He states that the physiotherapy recommended in AHRR dated 10 August 2020 is reasonable and necessary. He comments that the GIO’s contention that Ms Johnson focus on a self-directed independent gym and home exercises is consistent with a general statement that if there still exists occasions where additional physiotherapy is likely particularly during flare ups.
On 21 November 2020 Courtney Pointon, physiotherapist from Gerringong Physiotherapy, reported to Ms Johnson’s solicitors[45]. He notes that Ms Johnson has had a number of secondary complications such as PTSD which he believed had slowed her progress and therefore she required more sessions than the standard ACL injury.

CAUSATION ISSUE

[45] A9.

Legal principles

In section 3B of the Civil Liability Act 2002 various liability is excluded from the operation of that Act however, sub-section (2) provides that “Divisions 1-4 and 8 of Part 1A (Negligence)” apply to motor accidents. Sections 5D and 5E relating to causation are in Division 3 of the Civil Liability Act 2002, therefore they apply to the MAI Act.[46]
[46] See Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 and Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 at [65].
In addition, various Supreme Court and Court of Appeal cases have discussed the principles to apply when determining issues of causation in motor accident cases. Those cases warn that treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation can lead to error as the question to be answered is whether the motor accident materially contributed to the injury to the body part in question. For instance, at [31] in Bugat v Fox[47] the Court stated:
“One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders”.
[47] (2014) 67 MVR 150; [2014] NSWSC 888, Bugat.
The Courts have also considered causation issues in the situation where an injury sustained in a motor accident has subsequently materially contributed to an injury to another body part. In AAI Ltd Trading as GIO as agent for Nominal Defendant v McGiffen[48] the Court of Appeal held at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”

Back
[48] [2016] NSWCA 229, McGiffen.

The insurer’s declinature dated 20 August 2020 does not raise any issues of causation. It just asserts that Ms Johnson has had sufficient physiotherapy treatment for her motor accident- related injuries[49]. In the insurer’s internal review decision dated 18 September 2020 it does not dispute that Ms Johnson injured her back in the motor accident. On page 12 of their decision the insurer noted that Dr O’Brien originally diagnosed the left wrist fracture and “upon subsequent review, Dr O’Brien amended the injury to include a ‘Back Injury’ which has been consistently certified to date.” The decision then refers to the insurer having provided approximately 30 sessions of physiotherapy to Ms Johnson’s left wrist and low back.
[49] A2.
Thereafter, on page 13 of their decision the insurer denies the causal relationship with the left knee injury (discussed below) and the motor accident, but the insurer does not deny that Ms Johnson injured her back in the motor accident.
In the insurer’s submissions dated 22 January 2021 filed in response to Ms Johnson’s DRS Application to have the treatment dispute assessed, at [14] to [15] it sets out the initial treating evidence which it states does not refer to any injury to the lumbar spine. At [16] it summaries Dr O’Brien’s clinical entries which include some references to back pain. The insurer submits there is no recorded medical history of back spasms leading up to the July 2019 incident. The insurer does not proceed to argue that the back was not injured in the motor accident, but its argument is that it should not be accepted that the knee injury was caused by back spasms.
In the insurer’s submissions dated 10 June 2021 filed to seek a review of the Medical Assessor’s Certificate at [14] it appears to raise as an issue that whether Ms Johnson injured her back in the motor accident. At [15] the insurer submits that Medical Assessor Condie did not give weight to the insurer’s argument that there was a two-month gap in reporting back symptoms after the motor accident. It also criticises the Medical Assessor’s finding that the accident involved high speed and the impact forces seemed to have been significant and Ms Johnson was likely to have injured her spine. The insurer argues that the Medical Assessor is not qualified to comment on the likelihood of forces causing an accident.
The Panel’s determination is by way of a fresh assessment. The Panel considers that it is significant that Ms Johnson was thrown 30-40 metres from a motor cycle which was traveling at a 100 kph and landed on the roadway. This evidence is uncontroverted and was contained in the Ambulance report. The Panel considers it is relevant that the mechanism of how the injury occurred be considered by the Panel and finds in this case it is within the common medical knowledge of the Medical Assessor members of the Panel that Ms Johnson could have sustained an injury to her lumbar spine in such an accident. Whether she did or not is determined by a consideration of all of the relevant evidence.
The Panel has summarised earlier in these reasons the treating evidence and also the information on Ms Johnson’s claim form. The claim form is dated 4 December 2018 and it refers to various injuries including to “Back-mainly lower back”[50]. The insurer has submitted there is a two-month delay in Ms Johnson reporting back symptoms following the accident, yet this document demonstrates that she informed the insurer of this back injury within three weeks of the accident. The Panel finds this delay is not significant when one takes into account that she also sustained a fractured wrist in the accident and underwent left wrist surgery on 29 November 2018. In this case the Panel finds the fact that the ambulance report and discharge summary from Wollongong Hospital do not refer to a back injury is not determinative as to whether she sustained a back injury, given both were treating an acute fracture.
[50] A4.
Furthermore, within four weeks of the accident, on 18 December 2018, Dr O’Brien noted Ms Johnson had been getting some coccyx pain since the accident and she had been using analgesia more for that than her arm. Dr O’Brien issued a certificate of capacity which sets out a number of physical restrictions including, but not limited to, a reduced sitting and standing tolerance. The Panel considers such restrictions could only relate to injury to Ms Johnson’s back as they are not the type of restrictions to relate to a fractured wrist. Furthermore, on 14 January 2019 Dr O’Brien issued a referral to Shell Cove Physiotherapy requesting treatment of her left wrist following the surgery. The doctor also noted that Ms Johnson “has also been suffering from back pain since the motorcycle accident and would benefit from your input regards this too.”[51]
[51] A18.
The Panel considers this evidence supports a finding that Ms Johnson did sustain an injury to her back in the motor accident on 18 November 2018.
The further issue raised by the insurer is whether Ms Johnson had a back spasm on 15 July 2019 causing the left knee injury. This is dealt with below.

Left knee incident 15 July 2019

Ms Johnson has given the history to her doctors that on 15 July 2019 she was walking down the stairs at her home when she experienced an acute episode of spasm in her back which she says caused her to fall and injure her left knee. In her initial submissions she relies upon the opinion of Dr Cossetto to support the causal connection between this left knee injury (and it subsequent treatment) to the motor vehicle accident.
In her submissions she argues that the physiotherapy sought in AHRR No. 7 is to treat her left knee injury and calf strain.
The insurer in their submissions dated at [17] argues that the medical records do not indicate any history of back spasms in the months leading up to the July 2019 incident. The Panel finds that this factor is not determinative of whether she in fact experienced a back spasm on 15 July 2019.
The Panel notes there is a documented history in Dr O’Brien’s clinical entry on 4 February 2019 that Ms Johnson did suffer from back spasms. He prescribed Diazepam to treat the spasms. He further prescribed Diazepam on 15 February 2019 and 16 April 2019. While there may not be a mention of further back spasms, there is documented evidence that she continued to suffer from back pain, such as on 9 July 2019 when Dr O’Brien noted Ms Johnson still had back and wrist pain[52].
[52] A12.
Furthermore, the Panel considers it is significant that the contemporaneous histories about the incident on 15 July 2019 refer to back pain. As noted in the summary above, on that day the radiologist recorded a clinical history “left knee gave way, low back pain”. This entry is not detailed enough to glean how the incident occurred. However, Dr O’Brien who saw Ms Johnson a few days later on 19 July 2019 recorded:
“back went into spasm and knee gave way. ? dislocated and landed on knee. Felt it snap back in when she stood up. Unable to straighten knee since. This was 15/7/19. Wen to ED but wait too long. Went to Dapto medical centre…”

Dr O’Brien recorded his examination findings and noted his impression “?medial meniscal tear”. He also diagnosed muscle spasms and prescribed Diazepam.
The Panel considers that this evidence is persuasive and establishes on the balance of probabilities that Ms Johnson did experience a spasm in her back on 15 July 2019. The Panel also finds that this back spasm is consistent with that experienced by the claimant in February 2019, when Dr O’Brien also prescribed Diazepam.
The insurer submitted at [24] “notably, Dr Stackpool did not agree that Ms Johnson’s subsequent left knee injury was caused by or related to the alleged back injury sustained in the subject accident.” However, Dr Stackpool in his report dated 7 August 2019 does not express an opinion in this report about whether the left knee injury is causally related to the motor cycle accident. He mentions she has had some lower back pain but in his history about the incident in July 2019 he does not refer to Ms Johnson having a back spasm and this contributing to her sustain the left knee injury.
The Panel does not place weight upon the fact that Dr Stackpool does not express an opinion about causation or refer to the back spasming. The Court of Appeal has repeatedly stressed that busy treating doctors may not necessarily focus on causation issues.[53] Ms Johnson had already given this history to Dr O’Brien, therefore, the Panel finds the failure of Dr Stackpool to refer to back spasm is not determinative.
[53] See Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
In addition, the Panel accepts the uncontradicted evidence from Dr Cossetto that the left knee incident on 15 July 2019 was caused by Ms Johnson suffering a back spasm. Dr Cossetto has a detailed history of the incident and the Panel finds he has carefully considered the causation issue. Dr Cossetto’s history is that in July 2019 Ms Johnson was carrying a washing basket walking down a set of stairs at her home and she experienced an onset of a painful spasm in her back causing her to fall and in the process, she sustained a significant twisting injury to her left knee. The Panel finds this history is consistent with the account Ms Johnson gave at the time to Dr O’Brien.
Furthermore, the Panel is of the opinion that the injury to Ms Johnson’s back in the motor accident has materially contributed to her suffering back spasms thereafter. The Panel places no weight on the fact that they occurred spasmodically, and that none were documented occurring immediately prior to 15 July 2019. The Panel accepts Ms Johnson’s account of how the incident occurred is truthful and a back spasm can occur in such circumstances.
Having found the back spasm occurred on 15 July 2019 and was caused by the motor accident, it remains for the Panel to consider the balance of the insurer’s submissions about the nature of the injury to the left knee sustained in this incident.
The Insurer submitted at [24] that Dr Stackpool believed the cause of the left knee and calf injury was due to a pre-existing chronic ACL tear. Dr Stackpool does not actually express his opinion in these terms. In his report dated 7 August 2019 the doctor opines that Ms Johnson sustained a large medial meniscal tear on the background of an ACL occult chronic tear. The operation performed by Dr Stackpool on 1 November 2019 confirmed the presence of a medial meniscus bucket handle tear that was irreparable. The doctor performed a partial medial meniscectomy, chondroplasty and ACL reconstruction.
The Panel finds even if the ACL tear was chronic and pre-existed the motor accident, that does not mean the incident on 15 July 2019 was caused by such pathology. As explained above the evidence supports a finding that Ms Johnson did experience a back spasm when walking down the stairs, while carrying a load of washing and it was the effect of the spasm that caused Ms Johnson to fall and, in the process, she injured her left knee. Dr O’Brien took a history of a twisting of the knee in the incident. The occasioning of the medial meniscus tear is consistent with such a process.
Furthermore, the Panel notes there is no evidence to support an argument that the need for the left knee operation was only caused by the underlying ACL tear. The Panel finds that it is more likely than not on the balance of probabilities that the left knee injury caused the medial meniscus tear. There is absolutely no evidence that Ms Johnson suffered from such a tear before this incident and as noted in the operation report the tear was irreparable and the Panel finds arthroscopic surgery would have been required to perform the partial meniscectomy even without the presence of a chronic ACL tear. Another relevant factor is even if Ms Johnson had an underlying chronic ACL tear there was no indication it required surgery until after the left knee injury. The Panel considers it is more likely than not on the balance of probabilities that the twisting type injury to her left knee on 15 July 2019 aggravated the underlying ACL tear to the extent that it materially contributed to the need for her to have the surgical procedure.

Left calf incident 8 March 2020

The insurer submits at [27] of it submissions dated 21 January 2021 that by 20 December 2019 Ms Johnson had recovered in respect of the left knee injury. It based this submission on the report of Dr Stackpool of that date[54]. However, even though the doctor noted in that report that Ms Johnson was progressing well, Dr Stackpool does not actually state that she had recovered. He says she has minimal pain, no instability with the ACL and walks with a near normal gait. But he notes she is having physiotherapy and he concludes by advising “I have recommended progressing her through her ACL recovery rehabilitation program.”
[54] A34.
Furthermore, in AHRR No. 7, the physiotherapist makes the observation that there is swelling in the anterior knee, but gait deviation remains evident due to the lack in range. There is still pain in the hamstring attachment. The active range of motion is noted as -5 degrees to 90 degrees before pain and swelling restrict the motion. The passive range of motion is -2 to 110 degrees before pain restricts range of motion. The physiotherapist notes that Ms Johnson is able to fully weight bear on the left knee, but there is obvious reduced strength compared to the non-operative side. Therefore, the Panel finds that it is clear from the physiotherapist assessment, that the residual impairments remain as a reduced knee range of motion and reduced strength. It is also clear from the physiotherapist’s assessment that the treatment aimed to be provided relates to these impairments, that is to improve the remaining restriction in range and to upgrade the exercise programme.
Therefore, while from the surgeon's perspective there was minimal pain and no instability on the ACL, a physiotherapist's assessment differs, in that it focuses on function and impairment. The Panel finds that it is clear from this assessment, that the residual functional deficits, that is weakness in the knee and residual impairment, was still present when this AHRR was written. The Panel advises that these two assessments (from the surgeon and the physiotherapist) do not differ. They just assess different things. The surgeon has assessed pain and stability of the ACL reconstruction. The physiotherapist on the other hand has assessed impairment and function.
For these reasons, the Panel does not accept the insurer’s submission that Ms Johnson had recovered in respect to her left knee before the incident on 8 March 2020.
The insurer at [7] of its submissions dated 21 January 2021 argues that the injury to the left calf was caused by the conditions, rather than the motor accident. However, the Panel finds that Ms Johnson having sustained a significant injury to her left knee and having undergone surgery on 1 November 2019 would be more likely than not on the balance of probabilities to walk tentatively in wet conditions, as she alleges she did. The Panel find in such circumstances the gait used by Ms Johnson more likely than not on the balance of probabilities did cause her to suffer from the left calf strain.
This conclusion is supported by the opinion of Ethan Miles who on 10 March 2020 reported to the general practitioner that over the weekend Ms Johnson had strained her left calf complex while walking on wet surfaces in Sydney. He states prior to the injury she was walking tentatively due to her lack of confidence in her left knee following the surgery and Mr Miles stated he believed this led to an overload through her calf complex when she had gone to take a step[55].
[55] A4 and A35.
The Panel notes that there is some confusion in Assessor Condie’s certificate and reasons because she refers to Ms Johnson sustaining a right calf injury when walking on wet pavers in March 2020 and she refers to more recent right knee pain. There is no evidence of a right calf injury. The contemporaneous records of Mr Miles and Dr Jackson refer to the injury being to the left calf. Furthermore, the right knee and calf are not the subject of the treatment dispute based upon the recommendation in AHRR No.7

REASONABLE AND NECESSARY ISSUE

The insurer submits that the findings of Assessor Condie were incorrect, failed to properly engage with arguments raised by the insurer, failed to provide a path of reasoning to the conclusions, and failed to provide adequate reasons.
Addressing these concerns, the Panel initially refers to AHRR No. 7 form dated 20 August 2020 where physiotherapy is requested.
The diagnosis provided on this document reads knee injury (ACL, MCL, meniscus etc) and reconstruction on the 1 November 2019. It further stated, “additional calf strain has occurred since her initial injury … this patient is also suffering NSLBP as a result of her modified gait pattern from both the calf and the knee”.
Further down in the form, it is recorded that current psychosocial factors are being addressed by the psychologist which include post-traumatic stress disorder. The Panel notes that in section 4 of the form it is stated that 61 sessions had been provided to date, and services had commenced on 5 February 2019. The services requested within this form were to commence or did commence on the 20 August 2020 and were to be completed on presumably on the 30 December 2020 (although this reads 2019).
The goal listed in this AHRR is to be able to lift 30 kilograms without an increase in pain in her knee. The treatment to be provided is to continue to progress weights in the gym. The service provider (that being the physiotherapist writes) that the treatment to be provided would be to prescribe and monitor upgrades to the exercise programme. It also is stated that the physiotherapist would provide education regarding self-pacing and alternate tasks to minimise aggravation and manage flare ups. It is noted that the physiotherapist would liaise with the general practitioner regarding upgrades at work, and taper treatment as well.
The eight treatments requested were to occur once per week for four weeks and then taper to once per fortnight for eight weeks.
The concerns of the insurer outlined in their submissions dated 10 June 2021 have been considered. On pages 1, 2 and 3 of this document, the insurer lists several concerns regarding the failure to properly engage with the substantive arguments.
It would appear that the insurer is disputing that the treatment provided or proposed to be provided in AHRR No. 7 relates to rehabilitating the calf strain. However, the Panel advises in reviewing the treatment to be provided in the AHRR, it is clear that this treatment relates to the ACL injury/reconstruction and the knee injury primarily. Whilst the physiotherapist has noted that there is an additional calf strain, the knee injury is the main reason for treatment.
It is noted that the type of treatment referred to in the AHRR which includes exercise and progressing gym programme, is likely to address both injuries, that being both the knee injury and the calf injury. The Panel advises to treat one condition it is necessary to consider the other. For example, a quadriceps strengthening programme to rehabilitate a knee reconstruction, would have to consider a calf strain in the load being provided.
The Panel finds it would be expected that physiotherapy treatment begins to taper, as strength gains cannot be made quickly. Therefore, it would be considered reasonable at this time frame (nine months post injury) to provide fortnightly upgrades rather than weekly upgrades. The Panel finds that the physiotherapist clearly was moving in that direction, by requesting four weekly sessions followed by fortnightly sessions. Hence, the Panel considers that some physiotherapy treatment in fact would be reasonable and necessary. The Panel bases this conclusion on the fact that:
(a)    There were residual impairments in the knee including lack of range and weakness compared to the non- operated knee still present at the time the AHRR was written that being 10 August 2020.
(b)    This date is nine months after the initial reconstruction. Whilst in an athlete, rehabilitation of ACL reconstruction may well be expected to be completed within six months, there are circumstances in this case that would mean it is reasonable for rehabilitation to continue beyond a six-month timeframe. Ms Johnson is not an athlete, she also underwent a partial medial meniscectomy, and she was also suffering from psychological symptoms, which the physiotherapist was concerned was affecting her recovery.
(c)    The treatment to be provided is evidence based and is recommended in the management of ACL reconstruction.
(d)    This treatment has actually tapered from the previous AHRR in line with evidence-based practice. It is noted in the previous AHRR that two gym sessions were requested twice a week for eight weeks. It was noted that at the time the treatment was around the client goal of completing phase two of the Melbourne ACL guide within 12 weeks.
Therefore, the Panel finds that fortnightly sessions would be reasonable and necessary, hence of the eight sessions requested, six are reasonable and necessary and two are not.

[2021] NSWPICMP 234

1 December 2021