AAI Ltd t/as GIO v Gerling

[2022] NSWPICMP 67

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Ltd t/as GIO v Gerling [2022] NSWPICMP 67

CLAIMANT:

Jennifer Gerling

INSURER:

AAI Ltd t/as GIO

REVIEW PANEL:

Principal Member John Harris
Dr Shane Moloney
Dr Geoffrey Stubbs

DATE OF DECISION:

28 March 2022

CATCHWORDS:

MOTOR ACCIDENTS- The claimant was involved in a motor accident in 2017 and underwent lumbar spine surgery in late 2021; the medical disputes related to whether the lumbar spine surgical procedure was reasonable and necessary and other multiple treatment and care disputes; Held- factual findings made that lumbar spine and cervical spine injured in the motor accident, but the right shoulder and knees were not injured; absence of proper explanation of injury to those body parts in circumstances where the claimant had significant pre-existing conditions; finding made that the motor accident materially contributed to the need for surgical treatment of the lumbar spine; AAI Ltd v Phillips applied; surgical treatment held to be reasonable and necessary in the circumstances; considerations given to factors discussed in Diab v NRMA; acceptance that the treatment was appropriate medical treatment and conservative treatment had failed; the surgical treatment was an accepted medical procedure; claimant’s evidence that she had a positive outcome accepted.

DETERMINATIONS MADE:  

The Review Panel revokes the certificate of Medical Assessor Dixon dated 10 September 2021 and issues the following certificate.

The following treatment and care:

The anterior lumbar discectomy and fusion at L4/5 and L5/S1 undertaken on 15 November 2021

RELATES TO THE INJURY caused by the motor accident.

The following treatment and care:

The anterior lumbar discectomy and fusion at L4/5 and L5/S1 undertaken on 15 November 2021

Is Reasonable and Necessary in the Circumstances.

The parties have agreed that the balance of the medical assessment determined by Medical Assessor Dixon is not a medical dispute.

Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999

In respect of the certificate issued by Medical Assessor Cameron dated 10 July 2021, the parties are to comply with the directions set out at paragraphs 172 - 178 herein.

REASONS

Background

1. Ms Gerling (the claimant) was involved in a motor accident on 23 November 2017 when another vehicle failed to stop in time impacting into the rear of her vehicle causing it to shunt into another vehicle in front (the motor accident).

2. The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Gerling any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

3. The present disputes between the parties are whether various medical treatments “reasonable and necessary in the circumstances” and “relates to an injury caused by the motor accident”. These constitute medical disputes within the meaning of the MAC Act.[1]

   [1] See ss 57 and 58 of the MAC Act.

4. A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.

Background to the medical disputes

[2] Section 60 of the MAC Act.

The medical dispute concerning two surgical procedures

1. This medical dispute related to the following surgical procedures (the surgical procedures dispute):

   -      the proposed future provision of anterior cervical decompression fusion recommended by Dr Ashish Diwan on 18 June 2018, and

   -      the proposed future provision of lumbar spine fusion recommended by Dr Ashish Diwan and Dr Saeed Kohan.

2. On 2 June 2021 Medical Assessor Dixon issued a certificate that the proposed cervical fusion was not causally related to the injury caused by the motor accident and that the proposed lumbar spine fusion was causally related to the injury caused by the motor accident. The Medical Assessor also found that the cervical fusion is not reasonable and necessary in relation to the injury caused by the motor accident and the proposed lumbar spine fusion is reasonable and necessary in relation to the injury caused by the motor accident.

3. On 15 November 2021 Ms Gerling underwent a lumbar spine fusion at L4/5 and L5/S1.

4. On 17 March 2022 the Panel sought the consent of the parties to rephrase that part of the medical dispute to refer to the fact that lumbar spine surgery had occurred and to ask whether the actual surgery was reasonable and necessary and related to the motor accident.

5. Both parties advised the Personal Injury Commission (Commission) that they consented to the rephrasing of that part of the medical assessment. We have rephrased the medical assessment to accord with the fact that the lumbar surgery has occurred.

The various treatment and care disputes

1. The insurer referred to a number of treatment disputes for medical assessment. These disputes were phrased in the following terms (the various treatment and care disputes):

   -      domestic assistance from 23 November 2017 to the date of assessment;

   -      domestic assistance from the date of assessment and continuing for next 0-34 years (until January 2055);

   -      provision of 0-26 sessions per year of rehabilitation treatment (exercise physiology/physiotherapy/hydrotherapy);

   -      proposed future provision of 0-26 sessions per year of general practitioner consultations from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of 0-2 sessions per year of orthopaedic consultations from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of Panadol Osteo from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of Targin from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of Panadeine Forte from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of paracetamol from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of codeine phospate from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years;

   -      proposed future provision of Endone from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years, and

   -      proposed future provision of Lyrica from the date of assessment and continuing for 0, 1, 2, 3, 4, 5, 10, 15, 25 or 35 years.

2. The treatment and care disputes required separate answers on whether the proposed treatment, or any proportion of them was “reasonable and necessary in the circumstances” and separately whether the treatment was caused by the motor accident. 

3. On 10 July 2021 Medical Assessor Cameron issued a certificate that none of the various listed treatments or care were either reasonable and necessary or caused by the motor accident.

The reviews

1. The insurer sought a review of the certificate issued by Medical Assessor Dixon. On 10 September 2021 the Delegate of the President determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.

2. The claimant sought a review of the certificate issued by Medical Assessor Cameron. On 9 December 2021 the Delegate of the President determined that there was reasonable cause to suspect that the medical assessment of Medical Assessor Cameron was incorrect in a material respect.

3. 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.

4. The new review provisions provide[3] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Commission.

   [3] Section 63(3) of the MAC Act.

5. Both the surgical treatment dispute and the various treatment disputes were referred to the Panel.

6. Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[4]

   [4] Section 41(2) of the PIC Act.

7. 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 matter solely based on the written application[5].

   [5] Rule 128 of the PIC Rules.

8. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[6] 

   [6] Section 63(3A) of the MAC Act.

9. The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.

10. Further documents were filed by the claimant in response to a request by the Panel to provide updated specialist reports.

Statutory provisions/Guidelines

1. Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.

2. Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.

3. Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.

4. These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.

5. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[7]. In Raina v CIC Allianz Insurance Ltd[8] Campbell J stated:

   “One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

   [7] See s 3B(2) of the Civil Liability Act 2002.

   [8] [2021] NSWSC 13 (Raina) at [65].

6. These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.

Medical Assessor Dixon[9]

[9] Insurer’s bundle, page 992.

1. Medical Assessor Dixon issued a certificate dated 2 June 2021. He opined that there was a neck strain in the motor accident which aggravated cervical spondylosis which has continued. Examination revealed no clinical evidence that surgery was required.

2. Medical Assessor Dixon noted persisting low back pain and radicular complaint with right sciatica with a depressed right hamstring jerk and wasting of the right thigh and leg. He opined that whether both L4/5 and L5/S1 required stabilisation would require a discogram. A certification was made that the proposed lumbar fusion was reasonable and necessary and causally related to the motor accident although it should be preceded by provocative discography.

Medical Assessor Cameron

1. Medical Assessor Cameron issued a certificate dated 10 July 2021. He concluded that Ms Gerling sustained soft tissue injuries to the cervical and lumbar spine, both lower legs and possibly the shoulders in the context of a prior chronic pain syndrome for other health conditions.

2. The Medical Assessor concluded that none of the treatment was causatively related to the motor accident due to the nature of the injuries and the claimant’s pre-existing condition.

MATERIAL BEFORE THE REVIEW PANEL

1. The parties filed bundles of documents in accordance with the initial Direction and further material following the second Direction. Further correspondence was also filed although the Panel did not consider the solicitor correspondence particularly relevant to the medical disputes.

Claimant’s evidence

1. Ms Gerling completed a claim form dated 28 January 2018 describing injuries in the motor accident to the neck, right shoulder and arm symptoms, low back, right knee, calf and thigh pain.[10] Ms Gerling described the motor accident as occurring in the following circumstances:[11]

   “I came to a stop, when a white holden commodore vehicle in front stop suddenly, which at no time did I hit until I heard bang when the Mitsubishi Pajero behind me crashed into the rear end of my vehicle C X 5 mazda pushing me into the vehicle in front. I could not move my neck, back, legs. Right shoulder, arm and had pins and needles going down due to being flung back and forward due to the car accident.”

   [10] Insurer’s bundle, page 46.

   [11] Insurer’s bundle, page 45.

Other statement evidence

1. There are a number of witness statements from friends and work colleagues setting out observations of Ms Gerling up until the motor accident and their observations after the motor accident.[12] Mr Gerling provided a detailed statement dated 17 November 2020 of changes in domestic arrangements following the motor accident.[13]

   [12] Claimant’s bundle, pages 1,184-1,199.

   [13] Claimant’s bundle, page 1,180.

Pre-motor accident complaints

1. The insurer filed the workers compensation file and the workers compensation insurer list of payments for the 2007 work injury.[14] We do not intend to summarise this material in detail. We note the records show initial complaints of neck, bilateral shoulder and low back pain.[15]

   [14] Insurer’s bundle, pages 1,018-1,250.

   [15] See for example, Insurer’s bundle, page 1,060, page 1,113, page 1,208.

2. The compensation list of payments show a combined figure in excess of $119,000 with a permanent impairment payment of $12,375.[16]

   [16] Insurer’s bundle, page 1,214.

3. The following is a chronology of pre-accident symptoms.

   -   7.1.09 – Dr Keller – lumbar pain had resolved, ongoing neck pain radiating down left arm;[17]

   [17] Claimant’s bundle, page 1,235

   -   16.8.11 – Dr Bodel – neck pain and intermittent back pain. Assessed cervical spine impairment at 7% and right arm at 2% totalling 9% permanent impairment.[18]

   [18] Claimant’s bundle, page 1,225.

   -      2012 unilateral knee replacement;[19]

   [19] Insurer’s bundle, page 215.

   -      26.7.13 – claimant executes complying agreement – 9% for cervical spine and right upper extremity;[20]

   [20] Claimant’s bundle, page 1,208.

   -      2.4.14 – report from general practitioner noting motor accident on 17 February 2014 and subsequent miscarriage. Doctor noted injuries to lumbar spine and right thoracic/scapular;[21]

   [21] Claimant’s bundle, page 1,205.

   -      24.6.14 – whole body bone scan, arthritic changes in the AC joints bilaterally and throughout the medial compartment of the left knee, mild spondylotic changes in the lower thoracic and lower lumbar spine;[22]

   [22] Claimant’s bundle, page 1,203.

   -      30.6.14 – Dr Jamieson – 2014 motor vehicle accident caused lumbar and thoracic spine stiffness. Accepted three month physiotherapy;

   -      13.1.15 right medial knee pain after fall down stairs.[23] X-ray showed stable appearance of unicompartment knee replacement;[24]

   [23] Insurer’s bundle, page 215

   [24] Insurer’s bundle, page 745.

   -      27.1.15 – right arm symptoms – nil neck pain;[25]

   [25] Insurer’s bundle, page 216.

   -      30.6.15 – chronic left knee pain – worse with flexion, scans organised.[26] X-ray and ultrasound of left knee showed degenerative disease in medial meniscus and chondral wear within medial tibiofemoral compartment with narrowing of the joint space.[27]

   [26] Insurer’s bundle, page 218.

   [27] Insurer’s bundle, page 746.

   -      21.7.15 – degenerative joint disease – left knee, referred to Dr Solomon, orthopaedic surgeon;[28]

   [28] Insurer’s bundle, page 219.

   -      15.10.15 – flare up of knee osteoarthritis – uses panadeine forte intermittently[29];

   [29] Insurer’s bundle, page 220.

   -      4.12.15 – Bilateral knee pain intermittently, now right knee pain, prescribed panadeine forte;[30]

   [30] Insurer’s bundle, page 220.

   -      4.1.16 – ongoing knee OA pain;[31]

   [31] Insurer’s bundle, page 222.

   -      15.3.16 – three-day history of right sided back and hip pain;[32]

   [32] Insurer’s bundle, page 223.

   -      18.3.16 – ongoing right hip pain and knee pains, x-ray of right hip organised, panadeine forte prescribed.[33] X-ray of the right hip showed degeneration in the joint.[34]

   [33] Insurer’s bundle, page 224.

   [34] Insurer’s bundle, page 748.

   -      14.5.16 – one day history of right sided lower back pain;[35]

   [35] Insurer’s bundle, page 224.

   -      21.6.16 – prescribed endone for left foot pain;[36]

   [36] Insurer’s bundle, page 225.

   -      15.11.16 – left knee pain over last six months has worsened;[37]

   [37] Insurer’s bundle, page 227.

   -      17.11.16 – chronic knee pain;[38]

   [38] Insurer’s bundle, page 227.

   -      19.12.16 – flare up of lower back pain for 2 days after running;[39]

   [39] Insurer’s bundle, page 229.

   -      16.2.17 – chronic knee pain – requested panadeine forte;[40]

   [40] Insurer’s bundle, page 231.

   -      14.3.17 – improvement in bilateral knee pain,[41]

   [41] Insurer’s bundle, page 231.

   -      13.4.17 – exacerbation of low back pain after lifting – requested panadeine forte;[42]

   [42] Insurer’s bundle, page 231.

   -      9.5.17 – requested panadeine forte for knee and back pains;[43]

   [43] Insurer’s bundle, page 232.

   -      18.5.17 – exacerbation of lower back and knee pains over last week removing storm drainpipes. Endone and panadeine forte prescribed;[44]

   [44] Insurer’s bundle, page 233.

   -      3.6.17 – requested panadeine forte for chronic knee pain;[45]

   [45] Insurer’s bundle, page 234.

   -      15.6.17 – worsening right knee pain – prescribed panadeine forte;[46]

   [46] Insurer’s bundle, page 235.

   -      22.6.17 – note attendance on Dr Solomon for review of right knee hemiarthroplasty, chronic pain of both knees;

   -      27.6.17 – requested panadeine forte for right knee pain;

   -      10.7.17 – flare up of bilateral knee pains including fall and bruising of left knee, endone and panadeine forte prescribed;[47]

   -      7.8.17 – chronic right knee pain;

   -      11.8.17 – review of knee pains, panadeine forte issued;[48] 

   -      28.8.17 – review, going on holidays for 5 weeks – requested panadeine forte for chronic knee pains;[49]

   -      7.9.17 – review, going on holidays for 5 weeks – requested and prescribed endone;[50]

   -      20.10.17 – returned from three-week holiday – panadeine forte prescribed for chronic knee pains;[51]

   -      14.11.17 – three-day history of injury to the right shoulder, was doing a life-saving course, no previous shoulder injuries, chronic knee pains, no improvement of shoulder pain with panadeine forte, prescribed endone, referral for shoulder ultrasound and physiotherapy. Doctor noted restricted abduction to 70 degrees and queried whether there was a tear[52].  Right shoulder ultrasound revealed moderate thickening of the subdeltoid bursa and the supraspinatus tendon was mildly heterogenous with arthritis in the acromioclavicular joint[53], and

   -      16.11.17 – Review by gp, had ultrasound and physiotherapy and improving, abduction to 90 degrees, continue physiotherapy.[54]

   [47] Insurer’s bundle, page 236.

   [48] Insurer’s bundle, page 237.

   [49] Insurer’s bundle, page 238.

   [50] Insurer’s bundle, page 238.

   [51] Insurer’s bundle, page 239.

   [52] Insurer’s bundle, page 239.

   [53] Insurer’s bundle, page 752.

   [54] Insurer’s bundle, page 240.

Ambulance report

1. The ambulance report recorded that Ms Gerling complained of cervical spine pain, shoulder pain and bilateral calf pain. The pain diagram also noted lower back pain.[55]

Hospital notes

[55] Insurer’s bundle, page 208.

1. The hospital admission noted severe pain and tenderness in the cervical spine and worsening low back pain and noted that there was “no intrusion into vehicle cabin” and airbags did not deploy.[56] Bruising was observed to both lower calves. Both endone and morphine was provided.

   [56] Insurer’s bundle, page 420.

2. Progress notes referred to neck pain, back pain, central chest pain from seatbelt and pain in the right calf.[57] A chest x-ray and lumbar spine x-ray revealed no abnormality.[58] A CT scan of the cervical spine showed some spondylotic change.

   [57] Insurer’s bundle, page 423.

   [58] Insurer’s bundle, pages 431-2.

General practitioner

1. Dr Boon Teh provided a certificate dated 28 November 2017 describing injuries to the right thigh, neck whiplash, left shin bruise, right shoulder and low back. The certificate noted previous injuries/co-morbidities to the right knee, left knee and right shoulder.

2. The clinical note of Dr Teh dated 28 November 2017 referred to Ms Gerling suffering severe neck and back pain initially. There is reference to bilateral calf bruising, right thigh bruising, right shoulder bruise and right knee pain which is worse than baseline knee pains.[59] Panadeine forte was prescribed.

   [59] Insurer’s bundle, page 240.

3. The clinical note dated 4 December 2017 referred to right shoulder pain, with abduction limited to 30 degrees, right sided back pain with radiation, down the buttock, Various scans were organised at that time.

4. The clinical note dated 11 December 2017 recorded that right knee pain had improved but that right shoulder pain persisted.[60].

   [60] Insurer’s bundle, page 243.

5. Dr Teh provided an amended medical certificate dated 15 December 2017 which included a reference to the right knee.[61]

   [61] Insurer’s bundle, page 38

6. The clinical note dated 16 January 2018 recorded improvement in right shoulder pain with ongoing low back and neck pains.[62] Physiotherapy ceased at that time as it was aggravating spinal symptoms.

Specialist reports

[62] Insurer’s bundle, page 248.

Dr Ashish Diwan

1. Dr Ashish Diwan, spinal surgeon, initially reviewed Ms Gerling and provided a report dated 24 January 2018.[63] At that time the doctor noted altered sensation following the L3, L4 and L5 dermatomes and recommended conservative measures. The doctor recommended the assistance of a cleaner at home over the foreseeable future.

   [63] Insurer’s bundle, page 737.

2. Dr Diwan provided a further report dated 21 March 2018.[64] The doctor noted worsening lumbar spine symptoms which were of such magnitude to recommend surgery by way of spinal fusion.

   [64] Insurer’s bundle, page 735.

3. Dr Diwan provided a further report dated 18 June 2018 noting completion of spinal injection program.[65] The doctor noted that Ms Gerling continued to have problems with the low back, right buttock and right leg symptoms, neck and right shoulder. The doctor opined that it may be reasonable to consider a surgical option for the lumbar spine in the region of L4 to S1.

   [65] Insurer’s bundle, page 733.

4. Dr Diwan opined that the neck was asymptomatic prior to and was aggravated by the motor accident.

Dr Saeed Kohan

1. Dr Saeed Kohan, Neurosurgeon, reviewed Ms Gerling as a second opinion and provided a report dated 12 September 2018.[66] The doctor noted a history of lower back and neck pain subsequent to the motor accident. At that time he recommended exclusion of a differential diagnosis of the sacroiliac joint or trochanteric bursitis.

   [66] Insurer’s bundle, page 742.

2. Dr Kohan provided a report dated 1 November 2018[67] when he noted the right hip injection did not assist in resolution of pain. At that time surgery was discussed and it was agreed that Ms Gerling proceed with conservative management.

   [67] Insurer’s bundle, page 740.

3. In a report dated 30 September 2021, Dr Kohan noted that Ms Gerling was in severe pain taking Lyrica 150 mg b.d., Panadeine Forte 500 mg 2-3 times per day, Targin 5 mg twice daily as well as intermittent Endone.[68] The doctor noted that pain was in the low back with involvement of the right L5 nerve root. Ms Gerling was walking with a stick and found it difficult to walk or stand for prolonged periods.

   [68] Document AD 28.

4. Dr Kohan noted that recovery will be prolonged given the longstanding chronic back pain and nerve pain and recommended pain management following surgery. 

5. On 15 November 2021 Dr Kohan performed an anterior lumbar discectomy and fusion at L4/5 and L5/S1.[69]

   [69] Document AD 17.

6. Dr Kohan provided a report dated 2 December 2021 when he stated:[70]

   “I noted your email with regards to further information about the causation of
   Mrs. Gerling's back pain which has been associated with her motor vehicle accident.

   She underwent her surgery on 15th November, 2021 which went uneventfully and so far she has been doing quite well.

   At the time of surgery there was changes consistent with degenerative changes and no specific findings was noted to indicate whether there was any association with specific injury. The changes seen on her spinal discs at L4/5 and L5/S1 was consistent with chronic degeneration.

   Having said that the appearance cannot be distinguishable between whether an injury led to the progression of her degeneration or whether this is a normal age related changes. I hope this sheds light on your questions.”

   [70] Document AD 31.

7. By letter dated 22 December 2021 Dr Kohan started:[71]

   “I reviewed Jennifer today five weeks after her surgery and I was pleased that she is progressing very well.

   The reason to write to you today is further clarification regarding your question about the impact of the motor vehicle accident that she had on her lower back.

   As I had previously outlined in different reports, while Jennifer's MRI scan indicates chronic degenerative changes in the lumbar spine, she had become significantly symptomatic after her motor vehicle accident and therefore I believe the motor vehicle accident, while not causing the changes, it was the significant factor leading to exacerbation of her back pain and then subsequently needing to undergo surgery as her symptoms did not subside over the past four years since the motor vehicle accident.”

   [71] Document AD 31.

8. In a treatment report dated 22 December 2021[72] Dr Kohan noted that Ms Gerling showed improvement following surgery with reduction in the consumption of Targin and Endone and cessation of Lyrica with only occasional use over the previous five weeks. Dr Kohan noted increase in neck symptoms which were not severe enough to warrant surgery.

   [72] Document AD 31.

Qualified opinions

1. Dr John Bentivoglio, orthopaedic surgeon, was qualified by the insurer and provided a report dated 21 February 2019.[73] The doctor noted that there was a right shoulder injury on 14 November 2017 and Ms Gerling “was unsure as to the exact mechanism of the injury to her right knee”.

   [73] Insurer’s bundle, page 49.

2. The doctor recorded that the low back pain troubled Ms Gerling “most of all” with pain radiating down the right lower limb. He also recorded neck pain radiating down the right upper limb.

3. Dr Bentivoglio opined that the left knee pathology was constitutional, and the right knee X-ray taken in December 2017 showed an intact medial hemi knee arthroplasty with no evidence of any loosening or other abnormality. MRI scan of the lumbar spine in December 2018 showed disc desiccation in the lower three levels. The abnormalities were pre-existing and related to the 2007 work injury. Scan evidence of the cervical spine showed evidence of degeneration from C3 to C7.

4. Dr Bentivoglio accepted that Ms Gerling had aggravated pre-existing degenerative changes in the cervical spine and lumbar spine. However, any ongoing disability in the lower back was due to the 2007 work injury. He also felt there may have been some degree of damage to the right shoulder and right knee and that the only area “truly injured in the motor vehicle accident” was the right shoulder.

5. In a short subsequent report dated 21 March 2019 Dr Bentivoglio rejected assertions of complaints made by Ms Gerling.[74] 

   [74] Insurer’s bundle, page 66.

6. In a further report dated 3 April 2019 Dr Bentivoglio referred to the right shoulder ultrasound performed nine days prior to the motor accident and the scan undertaken in March 2018 which showed “exactly the same abnormality” and concluded that the motor accident has not caused any of the shoulder disability.

7. Dr John Harrison, orthopaedic surgeon, was qualified by the claimant’s solicitors and provided a report dated 30 July 2019.[75] The doctor noted an immediate prior history of right shoulder injury whilst practising for the Bronze Medallion which resulted in an attendance with Dr Boon, an ultrasound injection and referral for physiotherapy.

   [75] Insurer’s bundle, page 77.

8. Dr Harrison opined that there was aggravation and exacerbation of degenerative changes in the neck and lower back and around both knees, The doctor recommended that Ms Gerling be eased off analgesic dosages “for her own well-being”.

9. Dr Graham Vickey, psychiatrist was qualified by the insurer and provided a report dated 5 August 2019.[76]  The diagnosed a pre-existing Somatoform Chronic Pian Disorder.

   [76] Insurer’s bundle, page 94.

10. Dr Robert Gertler, psychiatrist, was qualified by the claimant’s lawyers and provided a report dated 3 September 2019.[77] The doctor noted pain particularly in the low back and right leg. He also noted that the claimant had largely recovered from the various physical complaints at the time of the motor accident as she had “resumed swimming, an activity which she had always enjoyed.”[78]

    [77] Insurer’s bundle, page 108.

    [78] Insurer’s bundle, page 110.

11. Dr Gertler opined that Ms Gerling suffered from an adjustment disorder with depressed mood which has developed on the basis of ongoing pain and associated disability.

Post motor accident radiology

1. An X-ray of the right knee dated 4 December 2017 reported an intact right medial knee hemiarthroplasty.[79]

   [79] Insurer’s bundle, page 754.

2. A right shoulder ultrasound dated 4 December 2017 was consistent with the pre-accident ultrasound and reported moderate thickening of the subdeltoid bursa and arthritis of the acromioclavicular joint.[80] The right shoulder ultrasound dated 16 March 2018 is consistent with the earlier scan.[81]

   [80] Insurer’s bundle, page 755.

   [81] Insurer’s bundle, page 763.

3. An MRI scan of the cervical spine dated 10 January 2018 showed spondylotic changes from C3 to C7 with moderate canal stenosis and neural foraminal changes due to osteophytes.[82] The MRI scan dated 5 June 2018 showed no significant change from the earlier scan.[83]

   [82] Insurer’s bundle, page 762.

   [83] Insurer’s bundle, page 767.

4. An MRI scan of the right shoulder dated 5 June 2018 showed mild to moderate supraspinatus tendinosis, no rotator cuff tear and AC joint osteoarthrosis.[84] An X-ray of the right shoulder dated 4 July 2018 showed no pathology other than pre-existing degenerative changes in the AC joint.[85]

   [84] Insurer’s bundle, page 757.

   [85] Insurer’s bundle, page 773.

5. An ultrasound of the left knee dated 14 August 2018 was unremarkable showing a Baker’s cyst.[86]

   [86] Insurer’s bundle, page 774.

6. An MRI scan of the left knee dated 4 December 2018 showed a ruptured Baker’s cyst, mild too moderate chronic osteoarthritis with full thickness chondral loss and chondromalacia patellae.[87]

   [87] Insurer’s bundle, page 781.

7. An MRI scan of the lumbar spine dated 22 December 2018 disc desiccation and degenerative changes form L3/4 to L5/S1.[88] A multipositional MRI scan of the lumbo- sacral spine showed similar changes.[89]

Documents relating to the motor accident

[88] Insurer’s bundle, page 782.

[89] Insurer’s bundle, page 784.

Dr Andrew McIntosh

1. Dr McIntosh, biomechanical expert, was qualified by the insurer and provided a report dated 27 April 2020.[90] The doctor opined that, based on the visible damage, the closing speed in the first impact was in the range of 20 to 30 km/h with the most likely change in velocity in the range of approximately 17 to 26 km/h. The closing impact, when Ms Gerling’s vehicle collided with the car in front, was in the order of 10 to 20 km/h with a change in velocity in the range of approximately 7 to 14 km/h.

   [90] Insurer’s bundle, page 117.

2. Dr McIntosh concluded that it was plausible that the collision materially contributed to a cervical spine/whiplash associated disorder and lumbar spine soft tissue injury or aggravation of pre-existing condition. The doctor noted that based on the claimant’s history of low back pain and the nature of the two collisions it is plausible that Ms Gering suffered a period of low back pain “with symptoms of a closed period of short duration”.[91]

   [91] Insurer’s bundle, page 167.

3. Dr McIntosh opined that it was unlikely that the motor accident materially contributed to the right shoulder and right knee injuries as there was no evidence of intrusion into the occupant area of the vehicle and Ms Gerling was wearing a properly adjusted and securely fastened seatbelt. The superficial areas of bruising were described as “unusual” although he opined 6tht there was no mechanism for right shoulder and right knee injury.

4. Dr McIntosh otherwise accepted that pre-existing injury is a risk factor in injury likelihood and symptoms presentation.

Dr Grant Johnston

1. Mr Grant Johnston, civil engineer, was qualified by the claimant and provided a report dated 29 September 2020.[92] Mr Johnston opined that the damage of the insured and claimant’s vehicle was consistent with an initial approach speed of between 40 and 50 km per hour which translated to a post-impact combined velocity of 24 to 30 km per hour. The secondary impact was in the order of 15 to 20 km per hour which equated to a post-impact combined velocity of 7.5 to 10 km per hour.

   [92] Claimant’s bundle, page 112.

2. Mr Johnston noted that the airbags did not deploy and stated that they will not deploy in a frontal crash of below 20 km per hour and will almost always deploy above 30 km per hour. He described the “grey area” in the 20 to 30 km per hour range. He stated that these figures were consistent with his calculations.

3. Dr Johnston opined that the bilateral bruising to the claves was explicable on the basis of impact with the seat adjustment bar.[93] He stated that it was likely that the legs have the rebounded forward “and probably struck the dashboard or steering column as evidenced by the injury to the left shin” and “possibly the knee”. However, he accepted that striking the knee one the vehicle structure was “unlikely in a crash of this severity”.

   [93] Claimant’s bundle, page 155.

4. Figure 7.1 of the report showed a photographs of bilateral calf bruising following the motor accident.[94]

   [94] Claimant’s bundle, page 145.

5. Mr Johnston opined that from a biomechanical perspective longer term injury is possible based on a delta-v of around 24 to 30 km per hour. He stated:[95]

   “It is not simply a statistical exercise noting that even at very low speed there are statistically some persons injured particularly in the mass data studies even though statistically it may be unlikely.”

   [95] Claimant’s bundle, page 160.

6. Mr Johnston accepted that the given the claimant had an asymptomatic degenerative back, it was likely made symptomatic by the subject incident which would have been further exacerbated by the second collision. The first rear-end collision was of sufficient severity for the injury to the neck.

7. Mr Johnston opined that the claimant may have struck her knee on the vehicle or possible even twisted or jarred the knee. He also opined that it was unclear whether there was an independent soft tissue injury to the muscles of the shoulder or whether it was referred pain from the neck as there was “no evidence to suggest a direct strike between the shoulder and the interior surface of the vehicle”.[96]

   [96] Claimant’s bundle, page 165.

SUBMISSIONS

1. The parties have filed multiple submissions in the course of the medical assessments. The following is only a summary of the extensive submissions.

2. At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[97] that there was error. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.

   [97] Or the relevant predecessor.

Claimant’s submissions dated 18 November 2020

1. The claimant submitted that she injured her back, neck, right shoulder, right knee, chest wall, bruising to both calves, right thigh and left shin. She has recently been diagnosed with a cystocoele secondary to chronic constipation caused by the use of opiate analgesia.

2. The claimant noted that Dr Diwan suggested that cervical neck surgery may be required at some future point in time. Both Dr Kohan and Dr Diwan recommended that Ms Gerling undergo fusion surgery to the lumbar spine.

Claimant’s further submissions dated 18 November 2020

1. The claimant filed extensive submissions summarising the evidence in the matter. She relied on the “primary evidence” being the opinion expressed by Dr John Harrison dated 30 July 2019, the report of Mr Johnston dated 29 September 2019 and the opinions expressed by Dr Diwan and Dr Kohan.

2. The claimant also referred to the assessment reports completed by Procare, on behalf of the insurer, and by Skilled Health, who was qualified by the claimant.

3. The claimant submitted that Dr Bentivoglio opined that the neck symptoms settled readily which was “in contradistinction to the prevailing expert medical evidence of the time”.[98]

Claimant’s submissions dated 17 May 2021[99], 20 May 2021[100] and 25 May 2021[101]

[98] Claimant’s bundle, page 22.

[99] Claimant’s bundle, page 1,276.

[100] Claimant’s bundle, page 1,273.

[101] Claimant’s bundle, page 1,268

1. These submissions relate to which Assessor should assess whole person impairment and do not impact on our task.

Claimant’s submissions dated 4 August 2021[102]

[102] Claimant’s bundle, page 1,251.

1. Theses submissions opposed the review of Medical Assessor Dixon’s decision. It was noted that the 2007 workplace accident was assessed by Dr Bodel at 7% for the cervical spine and that a 2009 complying agreement of a combined 9% was in respect of the cervical spine and the right upper extremity. Dr Keller found that any lumbar spine pain had resolved by 2009.

2. It was submitted that the 2014 motor accident was minor and not causative of degenerative changes. The lumbar spine complaints in 2016 and 2017 followed discrete incidents and the claimant did not complain of any radiation, weakness or numbness. The entries do not  accord with the insurer’s description of a “long standing and complex history of lower back pain”. Further, the insurer’s position that the lower back pain never resolved is contrary to evidence that it did.

3. The claimant submitted that the June 2014 CT scan was not before the Medical Assessor and Medical Assessor Dixon otherwise considered the pre-existing pathology.

4. The claimant noted that the Guidelines apply to the assessment of permanent impairment and do not apply to the assessment of treatment disputes.

5. The claimant also noted that the insurer’s belated argument that the surgery relates to subsequent falls is made in the absence of any evidence suggesting that “the Claimant suffered any material deterioration or aggravation in her lumbar spine as a result of those falls.”

Insurer’s submissions dated 2 September 2020[103]

[103] Insurer’s bundle, page 23

1. The insurer submitted that the claim for past and future treatment was excessive and not causally related to the motor accident. The insurer included a detailed chronology of pre-accident treatment.[104]

   [104] Insurer’s bundle, pages 24-27.

2. The insurer referred to the ambulance report and the hospital notes. It asserted, without any evidentiary basis, that the hospital stay of two days immediately following the accident “had more to do with the pre-existing condition rather than the accident”.

1. The insurer referred to the opinion of Dr McIntosh that opined that the accident involved a change in velocity of between 17-26 km per hour, that it would have likely caused a soft tissue injury to the cervical spine and aggravation of pre-existing low back of short duration. He otherwise concluded that the right shoulder and right knees were unlikely to have been caused by the motor accident. It referred to observations in R v Blanks[105] as to the expertise held by Dr McIntosh.

   [105] [2016] NSWSC 361.

2. The insurer referred to the opinion of Dr John Bentivoglio which was “more consistent with the findings of Dr Andrew McIntosh”. It also noted that Dr Vickery opined that Ms Gerling had a pre-existing Somatoform chronic pain disorder.

3. The insurer submitted that Dr Diwan did not support a conclusive recommendation that the cervical spine surgery was causally related to the motor accident.

4. In relation to the lumbar spine surgery, the insurer noted that Dr Kohan only suggested a possibility of a fusion surgery. It noted that Dr Harrison and Dr Bentivoglio did not consider fusion surgery was required.

Insurer’s submissions dated 20 January 2021[106]

[106] Insurer’s bundle, page 909

1. These submissions acknowledged the further material the claimant had filed in relation to the proposed lumbar surgery. It requested the care dispute be widened in light of the assistance report from Ms Heathcote and the opinion from Dr Teh concerning general practitioner consultations.

Insurer’s submissions dated 21 May 2021[107]

[107] Insurer’s bundle, page 911

1. These submissions were filed in response to the claimant’s submissions dated 20 May 2021. It was submitted that the MAC Act and Regulations make no provision for what the claimant is suggesting.

Insurer’s submissions dated 11 June 2021[108]

[108] Insurer’s bundle, page 913

1. The insurer accepted that the neck and back injuries were relevant to the various treatment and care disputes.

Insurer’s submissions dated 12 July 2021[109]

[109] Insurer’s bundle, page 1,009

1. These submissions were filed seeking a review of the certificate of Medical Assessor Dixon. The insurer submitted that the Medical Assessor ignored relevant pre-accident medical records, applied the wrong test of causation and did not address the insurer’s argument that Ms Gerling’s complaints are the result of degenerative changes.

2. The insurer referred to the extensive pre-accident problems in the lumbar spine and the CT scan of the whole body dated 24 June 2014 which identified spondylotic changes in the lower thoracic and lower lumbar spine. The insurer also referred to the extensive changes shown in the MRI scan dated 22 December 2017 which it described as “seemingly degenerative findings”.

3. The insurer referred to clause 1.7 of the Guidelines and the observations in AAI Ltd v Phillips[110]. It submitted that the proposed surgery was “entirely related to claimant’s pre-existing degenerative changes”.

[110] [2018] NSWSC 1,710.

RE-EXAMINATION

1. Ms Gerling was examined by both Medical Assessors on the Panel on 23 February 2022. Their joint examination reports are as follows:

   “Ms Gerling was 53 years old and is presently not working. She lives with her husband, who is a postal worker, and her 12 and 14-year-old son is in a mortgaged single-story home in Engadine. At the time of the subject motor vehicle accident, she worked on a casual part-time basis for a disability management firm called Home Instead between 6 and 10 hours per week. She provided personal assistance, housework assistance and travel assistance to the elderly/disabled still living in their own homes. She also has a voluntary work in her children’s school providing teachers type assistance on a part-time basis. She viewed herself as fit and well. She and her husband coach junior soccer and surfing their children. Ms Gerling was driven to the appointment by our friend. Her husband does not drive. Ms Gerling uses a walking stick. She came to Australia from Scotland 2000 after completing sports management and business management courses in London.

   She was driving her new red Mazda X5 SUV when she became the middle car middle car in a 3-car collision in traffic on 23 November 2017. The leading car was baulked when making a right-hand turn. Ms Gerling braked suddenly and the following car, a Mitsubishi Pajero four-wheel-drive, hit the rear of her car on the driver’s side. There was secondary collision with a car in front, the passenger-side front of the Mazda hit the driver rear side of the leading car, a Holden Commodore. Ms Gerling was stunned by the accident and unable to move. Police, ambulance, and fire brigade attended, and the driver’s side of the Mazda was forced open. She was extracted taken by ambulance to the Sutherland hospital. She was discharged on the second day after admission.

   She attended her family medical practice, the Engadine Central Medical Practice on 28 November 2017. Dr Boon was her usual general practitioner there, but he has since moved to join his brother at the Boon Medical Practice in Sutherland.

   Medical history prior to the motor vehicle accident:

   Ms Gerling made a workers compensation claim when employed as a manager at the North Sydney swimming centre in July 2007. She struck her head on an overhead pipe and injured her neck. She made a partial return to work on restricted hours and duties until she ceased work in September 2007 have her 1^st child. She went on maternity- leave for 6 months at half pay. Ms Gerling was asked if she received wage supplementation from the workers compensation insurer. She did not but they did pay for her medical expenses. She resigned her position in January 2009 and had a 2^nd child June 2009. The 2^nd child was born with disabilities, so she went on a carers benefit. The workers compensation insurer, CGU, requested review of her continuing physical therapy. The IME believes there was minimal incapacity, and she was able to do full-time hours. As at least 150 sessions over 18 months of physical therapy had not produced any improvement in her symptoms it should be discontinued as it was ineffective. This was put to Ms Gerling. She replied that the IME was duplicitous and unfair. She continued with her workers compensation claim and eventually settled for $12,000 in 2013. Ms Gerling at first stated that her neck pain fully settled, however on questioning, she did agree that when she saw Dr Bodel for an IME February and April 2011 prior to settlement, he correctly recorded her as having ongoing neck and right shoulder pain and assessed 5% WPI cervical spine and 2% WPI for the shoulder.

   In December 2012 she had a hemi arthroplasty to the right knee performed by Prof Michael Solomon at Prince of Wales Hospital.

   Ms Gerling re-entered the workforce after the workers compensation settlement 2013. She started with Home Instead providing personal care at the same hours and conditions as applied the time November 2017 motor vehicle accident.

   She made another personal injury claim in late 2014. She was 7-weeks pregnant and was grocery shopping. Whilst she was returning the trolley in the car park she was clipped by a passing car and the trolley driven into her abdomen. She reported the accident to the police. She attended the Sutherland hospital for an ultrasound examination on the same day as the accident but within a few days underwent a spontaneous miscarriage. Personal injury claim was made with Allianz and settled for $22,500.

   Ms Gerling believed she was fit and well prior the motor vehicle accident. She worked on a part-time basis and she and her husband coached junior soccer. As both the sons are involved ‘nippers’, a junior surf lifesaving movement and she found sitting around on the beach whilst they underwent training boring, so she undertook a bronze medallion training course. In the September of 2017, the family made a 5 week back-packing tour of Europe finishing in Scotland. She was able to walk everywhere and take public transport.

   She suffered an injury to her right shoulder when a surfboard flipped on 11 November 2017 when training for bronze medallion. She had an ultrasound of the shoulder done on 16 November, before the motor vehicle accident. She denied any neck or back pain or any limitations on activity.

   Ms Gerling was asked about the record made at Engadine Central Medical Centre:

   In March 2016 she reported right-sided hip and back pain recurring on 14 May 2016 with one-day history and provoked by bending over. On 1 July 2016 there was an episode of severe left heel pain after walking the dog. In November 2016 she had reported left knee pain of the preceding 6 months and worsened. On 19 December 2016 there was a flareup of low back pain when running in mother son athletic event 2 days previously. In February 2017 she required medication for knee pain, and this improved by March 2017. In April 2017 she suffered an injury to right elbow. In May 2017 there was an exacerbation of low back and knee pain over the preceding weeks. In June 2017 she was referred to Dr Solomon for knee review. In July 2017, the left knee pain is very severe after a fall causing bruising and a laceration. She was managed with physiotherapy and paracetamol, plus or minus codeine and nonsteroidal anti-inflammatory agents. Endone 5 mg times 20 was regularly prescribed every 2 months through this period.

   Ms Gerling had forgotten about these episodes of some years ago but did agree that her remembrance of being free from left knee and low back problems was optimistic.

   The Panel noted both the engineering reports concerning the motor vehicle accident and were able to see some photographs of the cars. The Panel asked Ms Gerling if her Mazda was fitted with automatic locking. It was and she was aware of this feature. She went on to say that the accident caused an immediate and severe neck and back pain, and she couldn’t move. However, she reported that the driver of the four-wheel-drive open the front passenger door of the Mazda to ask if she was all right. Ms Gerling writes in the PIC that ‘she was in so much pain that she could not move at all’ and driver of the four-wheel-drive call the emergency services. The PIC states that she has knee pain, shoulder pain neck arm and hand pain and pins and needles in hand , thigh pain and bruising shoulder pain and anxiety. The same complaints are reported in the Engadine Central Medical Centre notes. Ms Geary reported the Mazda was written off for ‘chassis distortion’. The CDA however advised St George hospital A&E Department that there was ‘no intrusion into vehicle cabin from the motor vehicle accident’.

   She did not do well after the accident. The medication was quickly increased to Endone 5 mg twice daily, amitriptyline, Lyrica 150 mg daily and tramadol. An MRI of the lumbar spine was performed on 22 December 2017, of the cervical spine 10 January 2018. She continued in difficulties throughout early 2018.

   By 16 August 2018 she started developed weakness in her legs causing falling and worsening left knee pain. The Engadine Central Medical Centre reports weakness and giving way of the right leg, worsening pain in the left knee and on 3 September 2018 that the pain in the low back has become noticeably worse over the weekend. On 9 September she has had two further falls. She saw Dr Diwan early 2018 and he advised surgery as worsening pain now spreads the left anterior thigh leg. Shoulder movement is markedly decreased. She also saw Dr Kohen later in September 2018, he advised a steroid injection into the right trochanteric bursa. Around October 3 episodes of right leg weakness and giving way but fortunately no fall occurred s. In November, the left knee pain is reported to be noticeably worse. And ultrasound of 9 November revealed a large Baker’s cyst. On 19 November back pain flared up again with further giving way but again no actual fall.

   In December 2018 she was sent to the Pain Management Unit Department of Anaesthetics. She was seen on 6 December 2018 with the initial assessment recording giving way with electric shocks in the right leg, a constant level of pain over the previous 12 months and attendance at an exercise physiologist once a week. The pain was –10/10 most of the time… (Ms Gerling) was not sure why she still had pain… She had previously recovered from injuries very well and cannot work out why she had not recovered this time. 8 cortisone injections into the shoulder, back, and neck had not helped. There was an obvious Baker’s cyst in the left knee which restricted full extension. The right shoulder had a reduced range of motion.

   She was enrolled in the ACTIVATE course of chronic pain management with an exercise physiologist, physiotherapist, and psychologist for 3 weeks in January 2019 with a note being made ‘the nervous system is very obviously in a constant state of “fight or flight". Ms Gerling thought the group sessions supportive but with time the benefit faded away. The pain management team again saw her 16 months later in mid-2020. In May 2020 she had presented to the emergency Department of the St George hospital because the GP was concerned that she may have cauda equina syndrome but discharged after neurological review. She was seen by Dr Kohen who wrote to Dr Boon on 30 June 2020 about the admission noting that it was bladder weakness not cauda equina draft but that a more recent MRI suggested compression of the L5 nerve roots and recent bone scan showed increased uptake L4 5 as a new development. He wrote ‘she is failed in the ACTIVE program’ and surgery is the only option to the status quo. Dr Kohn placed her on the public waiting list for a 2 level L5-S1 anterior spinal fusion at the St George hospital. The surgery was eventually performed on urgent basis at the St George private hospital. Ms Gerling maintained public hospital status.

   She also saw Prof Solomon again who placed on the public hospital waiting list at POW Hospital for a left knee arthroplasty, performed in March 2021.

   The present situation is this:

   She is 3 months after a 2-level anterior lumbosacral fusion. She reports immediate improvement. The low back ache/pain 85% reduced and the burning pain spreading down the back of the thigh to the outside of the calf at the little toe side of the foot has gone. Endone is only required occasionally in the Lyrica dose cut in half. Both knees are now very good, there is only mild discomfort. She is still using a walking stick, but this seems to be for security, indeed she described this as her ‘security stick’. The neck is still uncomfortable with pain coming on and off but not spreading beyond the upper trapezius on each side. There is still occasional paraesthesia in the small fingers of the right hand. Her ongoing problem is her right shoulder this is still painful and weak to the point where she cannot lift pots when cooking. She needs help from her sons when grocery shopping as she cannot carry the bag. She is doing a little housework and still employing a cleaner. She mostly addresses in shorts and a T-shirt. She does not attempt tights and needs help putting on on shoes and socks. She is able to wash and brush her hair, mostly by herself though with occasional help by her husband. She is driving locally. The girlfriends provide some gratuitous help transport. She is not planning to have neck surgery.

   Clinical examination:

   Ms Gerling is now 172.5 cm tall. She said she was 172 cm before surgery*. She can rise from chair without using her arms and can walk in the confines of the examination space without a stick. *This is an astute observation by Ms Gerling – anterior spinal fusion would restore intervertebral disc height and enlarges the intervertebral foramina simultaneously stabilising the spine and correcting for instability as well as restoring the intervertebral foramina and dealing with any radiculopathy.

   In the cervical spine there is a symmetrical restriction of movement to ½ range of lateral flexion and three quarters range with rotation flexion and extension. There is local tenderness confined to the trapezius muscle in the right and left neck muscles but there is distinct pain to moderate palpation over the anterior deltoid. The reflexes are brisk and symmetrical, grip strength is 5/5 and the girth of the upper arms is 25 cm right equals left and 22r cm forearm right equals left. The reflexes are brisk and symmetrical and apart from the occasional feeling of numbness in the little finger sensation is normal.

   In the upper limb clinical findings show no signs of cubital or carpal tunnel syndrome, no wasting of the thenar or hypothenar musculature and good two-point discrimination. Elbows, wrists, and hands abnormal movement

   There is noticeable wasting of the supraspinatous fossa and the right deltoid. Hawkins knee is impingement test positive and there is tenderness over the bicipital groove exacerbated by rotation of the shoulder with the elbows by the side. Speed’s test is positive and the Lift -off test shows weakness of the supraspinatous in and abduction.

   The active range of motion is given in the table below:

Right	left
Abduction	90°	160°
Extension	45°	50°
Abduction	70°	140°
Adduction	40°	50°
Internal rotation	70°	70°
External rotation	80°	80°
Circumduction supine IR in extension	120 degrees T 12	140°, T5

The right shoulder shows signs of an impingement syndrome but no loss of passive range of motion other than due to pain. The left shoulder is normal with a low normal range of motion.

Lumbar spine and lower limbs: There are an anterior midline abdominal scar from spinal fusion surgery. As the surgery was to recent lumbar spine examination was not pursued aggressively. Ankle jerks are present but neither knee jerks can be elicited because of the midline scarring from the knee replacement. Girth measurements are similarly unreliable because of the effect of the knee replacements. Both knees have an excellent result, there is full extension and comfortable flexion to 130°. Dorsi flexion plantarflexion strength/5 and there is no discernible sensory loss in either leg. Hips, ankles, and feet are normal within the limits of the examination

Image studies personally review:

Waratah imaging MRI lumbar spine 22 December 2017 – there is marked disc degeneration at L4 5 and L5 S1 associated with prominent Modic type III changes at both levels and localised Modic 1 changes adjacent L4 vertebral endplate. At L3 4 there is some mild disc degeneration but no other changes and T12-L3 are normal.

Whole body SPECT CT there is isotope uptake in the lower 3 cervical spine segments including the posterior elements consistent with age. There is more marked isotope uptake at L4-S1 consistent with active pathology.

MRI right shoulder 15 June 2018 and ultrasound right shoulder November 2017 – intact rotator cuff, no adhesive capsulitis, and some mild tendinitis of the supraspinatous and thickening of the sub acromial bursa.

Interpretation:

The cervical spine shows a low but symmetrical range of motion without excessive tenderness. The radiological features are consistent with normal ageing.

The intervertebral disc spaces at the lowest 2 levels of the lumbar spine are very narrow. There is a lot of type III Modic change present adjacent to both levels which is indicative of fibrous tissue replacement of bone marrow. This may be a normal finding with age. However, the SPECT CT is more active than one would expect with a simple degenerative condition and the presence of type I Modic changes indicative of an acute inflammatory response. This may occur with any process that results in distinct intervertebral disc injury/infection/instability – it is consistent with aggravation of pre-existing intervertebral disc degeneration from the motor vehicle accident.

The right shoulder has a common appearance for a 53-year-old female, there is some tendinitis, some bursitis, and a little bit of acromioclavicular degeneration/osteoarthritis. These changes are usually asymptomatic. Clinically there are signs in the right shoulder consistent with disuse (the muscle wasting) and impingement/rotator cuff tear. Ms Gerling needs further investigation preferably a repeat MRI to establish the diagnosis. However, given the normal appearance in June 2018, whatever is causing the problem is the right shoulder now is not from the motor vehicle accident.

The claimant present in a straightforward manner during the history taking and examination process. The contradictions in the history were pointed out to Ms Gerling and she accepted then. We believe they can be put down to fallibility of memory.

The pain management assessment showed extreme numbers for catastrophizing but even so, it appeared to be real to Ms Gerling. We believe that the surfing incident was the sole cause of the shoulder problem.

We also observe that the spinal fusion of the lumbar spine appeared successful. However, the outcome of such a major spinal procedure will take in the order of 12 to 18 months to achieve maximum benefit.”

REASONS 

1. The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decisions of either of the Medical Assessors. It is otherwise self-evident that the decisions of Medical Assessor Dixon and Medical Assessor Cameron are contradictory.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion:  Insurance Australia Group Ltd v Keen[111] and Insurance Australia Ltd v Marsh.[112] 

   [111] [2021] NSWCA 287 at [40], [41] and [45].

   [112] [2022] NSWCA 31 at [11], [21], [64]

3. The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.

Pre-motor accident condition

1. We have detailed the clinical records that show pre-existing conditions, particularly with regard to a chronic bilateral knee condition and a right shoulder injury sustained shortly prior to the motor accident. We discuss these in more detail below.

Lumbar spine injury

1. We accept that Ms Gerling had a pre-existing degenerative condition in the lumbar spine. The pre-existing condition is shown in the 2014 body scan and subsequent post-accident scans which show degenerative pathology. The post-accident scans show pathology, some of which would have preceded the motor accident.

2. The insurer incorrectly submitted that Ms Gerling was paid permanent impairment for the lumbar spine following the 2007 work injury. Dr Bentivoglio has a similar incorrect history, probably because the insurer provided that incorrect history to him. The submission is incorrect because the complying agreement accurately records the parties’ agreement which was for the cervical spine and the right upper extremity. Otherwise, Dr Bodel did not assess impairment of the lumbar spine in 2011 and Dr Keller opined in 2009 that the lumbar spine injury had resolved.

3. We agree with the claimant’s submission that Ms Gerling had a number of discrete lower back injuries at various times which required treatment. Those discrete incidents are described in the clinical notes and referred to earlier in these Reasons. There is no direct evidence that the lumbar spine was symptomatic immediately prior to the motor accident and Ms Gerling’s activities, such as training for the bronze medallion, are to the contrary.

4. The clinical history of short-term lumbar spine symptoms following discrete events is consistent with an underlying degenerative back problem. However, the notes otherwise do not indicate that the pre-existing lumbar spine condition, unlike the bilateral knee condition, was an ongoing problem.

5. The clinical material following the motor accident shows that Ms Gerling complained of continuous low back pain. The history provided by Ms Gerling to a number of doctors was that the biggest problem was lumbar spine.

6. In 2021 Medical Assessor Dixon observed radicular complaint with right sciatica with a depressed right hamstring jerk and wasting of the right thigh and leg. The treating surgeon, Dr Kohan noted right L5 nerve root symptoms.[113]

   [113] See [55] herein.

7. Dr Bentivolio’s opinion is incorrect because it proceeds on incorrect assumptions concerning the prior agreement and apparently that the claimant was symptomatic prior to the motor accident. That later assumption can only explain Dr Bentivoglio’s opinion that the lumbar spine was assessed at 5% impairment but was entirely due to the pre-existing condition. Clause 1.31 of the Guidelines requires a deduction to be made only if there was a symptomatic pre-existing impairment.

8. We accept that the motor accident aggravated the lumbar spine at the lower levels. That conclusion is consistent with our acceptance of the claimant’s history of ongoing and deteriorating symptoms in the lower back following the motor accident. It is also consistent with the pathology observed by the treating surgeon when he performed the surgery.

9. Both Dr McIntosh and Mr Johnston provide opinions that the motor accident, particularly the first impact, could aggravate degenerative changes in the spine. We do not understand the basis upon which Dr McIntosh asserted that any effects would last six months. That type of conclusion would be fact sensitive to the particular individual and does not otherwise accord with the expert medical knowledge on the Review Panel. The Panel’s view also accords with Dr McIntosh acknowledgement, that a pre-existing degenerative condition is more likely to be aggravated by a motor accident.

10. We are not bound to accept the opinions of any medical practitioners. However, the Panel’s conclusion accords with the recent opinions expressed by Dr Kohan which we accept.[114]

Cervical spine

[114] See paragraphs [58] – [59].

1. Ms Gerling was asymptomatic in the cervical spine immediately prior to the motor accident although there had been significant complaints of cervical spine following the 2007 work injury.

2. Ms Gerling complained of continuous cervical spine following the motor accident. Those complaints were not as serious as those relating to the lower back.

3. We accept, consistent with the 2014 spine scan and the complaints made following the 2007 work injury, that there was a pre-existing degenerative condition in the cervical spine.

4. The opinions of Dr McIntosh and Mr Johnston again support a finding that the cervical spine was injured in the motor accident. However, unlike Dr McIntosh, we do not accept that any aggravation of the cervical spine ceased after a period of some six months. Such a conclusion does not accord with the particular facts in this case and does not accord with the expert opinion of the medical practitioners on the Panel.

5. We accept, based on the continuity of Ms Gerling’s complaints that the cervical spine was asymptomatic at the time of the motor accident and that there was an aggravation of the degenerative condition.

Bilateral knee injury

1. We do not accept that Ms Gerling injured either knee in the motor accident.

2. Mr Johnston’s description of the cause of any right knee injury from the motor accident was somewhat speculative. Dr McIntosh opined that the right knee was not injured in the motor accident.

3. There is a continuous history of chronic bilateral pain prior to the motor accident referred to in the clinical notes of the general practitioner with particular reference to the right knee. The nature of the chronic bilateral knee pain was of such severity that Ms Gerling was on Panadeine Forte and occasionally taking Endone.

4. Dr Harrison opined that there was an aggravation of the bilateral knee condition although he did not record a history of direct trauma and does not provide a medical basis for how such an injury occurred.

5. Dr Bentivoglio noted a right knee injury sustained in the accident but stated that Ms Gerling “was unsure as to the exact mechanism of the injury to the right knee in the motor vehicle accident”.[115]

   [115] Insurer’s bundle, page 51.

6. We accept that there was soft tissue bruising to the thigh, calves and shin in the motor accident. Mr Johnston explained how these minor soft tissue injuries occurred.

7. The claimant’s case on the nature of the mechanism of the accident causing either right knee or bilateral knee injury is unclear. There are no self-evident reasons why there would have been injury and the observations by Mr Johnston as to possible causes are speculative. To adopt the observations in QBE Insurance (Australia) Ltd v Shah[116] “there is an absence of biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”.

   [116] [2021] NSWSC 288 (Shah) at [36].

8. We accept that Ms Gerling provided a subsequent and contemporaneous history of knee injury. However, that history must be considered in light of our findings that Ms Gerling had a chronic bilateral knee condition requiring continuous Panadeine Forte prior to the motor accident.

Right shoulder injury

1. We are not satisfied that there was injury to the right shoulder caused by the motor vehicle accident.

2. Mr Johnston could not explain based on the severity of the motor accident, how the right shoulder was injured.  Dr McIntosh opined that the right shoulder was not injured.

3. Ms Gerling sustained a right shoulder injury whilst training for her Bronze medallion some 12 days prior to the motor accident. She then consulted her general practitioner and immediately underwent an ultrasound and commenced physiotherapy. There was noticeable loss of abduction recorded by the general practitioner on 14 November 2017 and again, with some improvement, on 16 November 2017. It was then recorded that physiotherapy treatment was ongoing.

4. The scan evidence taken before and after the motor accident does not show a change in pathology. In that respect we agree with that part of the opinion expressed by Dr Bentivoglio.

5. Dr Harrison noted ongoing shoulder problems, but he did not opine that they were caused by the motor accident. This is evident from the doctor’s opinion that the motor accident “aggravated and exacerbated pre-existing degenerative changes in her neck and lower back and at and around both knees”.[117]

   [117] Claimant’s bundle, page 92.

6. We accept that there was a complaint of right shoulder pain following the motor accident. However, there were complaints of right shoulder pain with restriction on abduction and active treatment immediately prior to the motor accident.

7. We are otherwise not satisfied that the claimant has established the basis for how the motor accident injured the symptomatic right shoulder condition. 

Causal relationship between motor accident and treatment

1. The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[118] That means that there can be other non-related causes for the need for treatment included age related degenerative changes.

   [118] [2018] NSWSC 1710 (Phillips) at [29].

2. We accept that the claimant was symptomatic in the lower back at times prior to the motor accident. There were periods when the back condition flared up following specific incidents prior to the motor accident. However, Ms Gerling was able to continue work on a part-time basis and was practising for her bronze medallion for surf lifesaving just two weeks prior to the motor accident when she injured her right shoulder.

3. We accept that motor accident caused an aggravation of degenerative changes in the lumbar spine. That aggravation included dermatomal signs in at least at the L5 region as observed by both Medical Assessor Dixon and Dr Kohan in 2021.

4. There is a consistency of complaint by Ms Gerling of continuous low back pain following the motor accident. Those complaints are consistent with the specialist opinion and the various lay statements which discuss Ms Gerling’s ongoing problems.

5. We do not accept the suggestion that the falls detract from the fact that the motor accident aggravated the lumbar spine condition.  The claimant’s evidence which we accept indicates that these falls were otherwise due to the deteriorating back condition.

6. The lumbar fusion surgery was explained and recommended by Dr Kohan. Medical Assessor Dixon also supported the fusion although he recommended that Ms Gerling first undergo a discogram.

7. We accept that the claimant’s substantial back pain and observed radicular features were causative of the need for the fusion surgery. In those circumstances based on our finding that the motor accident aggravated the degenerative condition and caused the chronic lumbar spine pain, we find that the motor accident materially contributed to the lumbar surgery.

Reasonable and necessary in the circumstances

1. Ms Gerling is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.

2. When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[119], Grove J stated:[120]

   “22   I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.

   23     The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”

   [119] [2003] NSWCA 52 (Clampett).

   [120] Clampett at [22]-[23], Meagher & Santow JJA agreeing.

3. Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[121]

   [121] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].

4. Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[122] They include:

   (a)   the appropriateness of the particular treatment;

   (b)   the availability of alternative treatment;

   (c)   the cost of the treatment;

   (d)   the actual or potential effectiveness of the treatment, and

   (e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.

   [122] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].

5. A poor outcome does not mean that the treatment was not reasonable and necessary. The Panel endorses the following observation from Diab:[123]

   “Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.”

   [123] Diab at [89].

6. Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.  In their respective lengthy written submissions, neither party referred to any relevant Superior Court authority on the meaning “reasonable and necessary in the circumstances”. We could not find any authority noting those words have appeared in motor accident legislation for over 20 years.

7. A surgical fusion was raised by Dr Diwan. Dr Kohan provided a second opinion that the surgical treatment was warranted and explained the reasons why a fusion was required.

8. Both Medical Assessor Dixon and Dr Kohan observed signs in the L5 dermatome. Further, Dr Kohan acknowledge the claimant’s ongoing chronic pain which he hoped would be alleviated with this type of procedure.

9. Ms Gerling advised both Dr Kohan and the Medical Assessors on the Panel that there was a substantial improvement in her condition and reduction in pain relief medication following the surgery. A positive outcome is not determinative although it supports Dr Kohan’s treating opinion that the surgery should be undertaken.

10. Ms Gerling has undergone conservative treatment over a substantive period and was on high doses of medication prior to surgery which was not sustainable.

11. The Panel comprises two specialist doctors. Their examination report was undertaken after the surgical procedure, so the value of that examination is limited in determining whether the surgery was reasonable and necessary in the circumstances.

12. We accept, based on the expert knowledge within the Panel, that the surgical procedure was appropriate medical treatment and recognised by medical experts as being appropriate.

13. Ms Gerling had undergone conservative treatment which had failed. Indeed, the consumption of medication had increased in accordance with the pre-surgery report of Dr Kohan to a level that was not sustainable.

14. For all these reasons we are satisfied that the lumbar surgery was reasonable and necessary in the circumstances.

Prospect of cervical spine surgery

1. The parties filed submissions accepting that there is no medical dispute in relation to the proposed cervical spine surgery.[124] We otherwise observe that on the recent opinion of Dr Kohan and the examination findings of the Medical Assessors, such surgery is not warranted.

   [124] Insurer’s submissions, AD29. Claimant’s submissions, AD30.

2. Accordingly, we accept the common submission that there is no medical dispute in relation to proposed cervical spine surgery.

Future conduct of the matter (R-M10464504/21)

1. Ms Gerling has undergone extensive lumbar spine surgery on 15 November 2021 which we have found is causally related to the motor accident. We are unable to assess that part of the various treatment and care disputes which requires answers post the assessment undertaken by both Medical Assessors. In the expert view of the Medical Assessors on the Panel and endorsed by the Panel, Ms Gerling’s lumbar spine condition will not settle until 12 to 18 months following the lumbar spine surgery. We also note the improvement since the operation and hopefully Ms Gerling can continue to reduce the dangerous levels of narcotic medication that were being consumed prior to the operation.

2. In relation to the treatment and care disputes from the date of the accident to the date of assessment, which we will treat as the date of these Reasons, the parties are directed to file and serve submissions separately addressing each past treatment and care dispute and separately addressing the issue of “reasonable and necessary in the circumstances” and whether the treatment is causally related to the motor accident. As these reasons show, the issues are not the same.

3. We understand that the remaining two “past” treatment disputes relate to the amount of domestic assistance and rehabilitation treatment (exercise physiology, physiotherapy, hydrotherapy). The claimant is required to clarify this in her submissions.

4. The parties’ submissions are to be based on the findings of injury which have been made in these Reasons, that is injury to the cervical spine and the lumbar spine which has not resolved and required surgery, and the findings that the right shoulder and knees were not injured. The other soft tissue injuries (such as the calves, shin and thigh) have resolved within a short period.

5. The claimant is to file and serve submissions by close of business 7 April 2022. The submissions are to specify the evidence in support of the claim for past treatment by page reference to the bundle of documents already filed in the matter.

6. The respondent is to file and serve submissions by close of business 14 April 2022 on the same basis.

7. Neither party has leave to file updated further evidence.

CONCLUSIONS

1. Although we have agreed with the opinion expressed by Medical Assessor Dixon, it is necessary to revoke that certificate because the nature of the medical assessment has been amended to reflect that fact that the surgery has occurred. The replacement certificate in matter number R-M10433482/21 is set out at the commencement of these Reasons.

2. The various treatment and care disputes (R-M10464504/21) are stood over until after the parties have complied with the directions requiring the filing of further submissions.