Ahmad v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 221
•31 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ahmad v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 221 |
CLAIMANT: | Hasna Ahmad |
INSURER: | IAG Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 31 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); extensive treatment and care dispute following motor vehicle accident on 5 September 2019; claimant suffered both physical and psychiatric injuries and as a consequence of her psychiatric disabilities; claimant was prescribed certain medication which caused dizziness and subsequently two falls possibly impacting her physical disabilities by way of injuries to her chest wall and right shoulder; Medical Assessor assessed whole person impairment at 0% and this was not challenged by the claimant; Held – Review Panel not satisfied that the treatment and care is required given that there is no need for the claimant to have ongoing specialist review where no surgical treatment is planned and the treatment would not provide any significant benefit to the claimant; Review Panel was satisfied that the treatment and care did relate to the injury caused by the accident but was not satisfied that it was reasonable and necessary; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Cameron of 31 May 2024. 2. The following treatment and care does relate to the injury caused by the motor accident: (a) proposed 12 consultations with Dr Guirgis, orthopaedic surgeon, in relation to the lumbar spine injury; (b) proposed five consultations with Dr Halder, endocrine surgeon, in relation to the hernia; (c) proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury; (d) radiological investigations for the shoulder, as referred by Dr Guirgis, orthopaedic surgeon; (e) proposed two facet/z joint injections to the right shoulder; (f) proposed one facet/z joint injection to the right hip, and (g) any domestic assistance as recommended by Dr EI Skafi. 3. The following treatment and care is not reasonable and necessary in the circumstances: (a) proposed 12 consultations with Dr Guirgis, orthopedic surgeon, in relation to the lumbar spine injury; (b) proposed five consultations with Dr Halder, endocrine surgeon, in relation to the hernia; (c) proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury; (d) radiological investigations for the shoulder, as referred by Dr Guirgis, orthopaedic surgeon; (e) proposed two facet/z joint injections to the right shoulder; (f) proposed one facet/z joint injection to the right hip, and (g) any domestic assistance as recommended by Dr EI Skafi. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is seeking a review of a certificate of Medical Assessor Cameron (the Medical Assessor) dated 30 May 2024, alleging errors in the assessment of:
(a) permanent impairment in right shoulder, right hip, and lumbar spine, and
(b) all treatment disputes referred except magnesium medication.
There is a dispute between the claimant and the insurer about:
(a) the degree of permanent impairment under Schedule 2, s 2(a) of the Motor Accident Injuries Act 2017 (the Act);
(b) whether any treatment and care relate to an injury caused by the accident under Schedule 2, s 2(b) of the Act, and
(c) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Act.
Permanent impairment disputes to be assessed
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) Hernia - consequential umbilical hernia and rectus muscle hernia resulting from falls associated with side effects of medication;
(b) Right hip - anterosuperior labral fraying tears, contusion of the articular surface and spraining of the supporting capsular and ligamentous structures, gluteus medius and minimus tendonitis and trochanteric bursitis;
(c) Lumbar spine - musculo-ligamentous sprain/strain with L4/5 intervertebral disc involvement with sphincteric disturbances, and
(d) Right shoulder - consequential injury resulting from medication prescribed for psychiatric injury, partial thickness tear of the supraspinatus.
Treatment and/or care disputes to be assessed
The treatment and/or care disputes referred by the Commission for assessment:
(a) whether proposed 12 consultations with Dr Guirgis, orthopaedic surgeon, in relation to the lumbar spine injury is causally related to motor vehicle accident;
(b) whether proposed 12 consultations with Dr Guirgis, in relation to the lumbar spine injury is reasonable and necessary in the circumstances;
(c) whether proposed five consultations with Dr Halder, endocrine surgeon, in relation to the hernia is causally related to the motor vehicle accident;
(d) whether proposed five consultations with Dr Halder, in relation to the hernia is reasonable and necessary in the circumstances;
(e) whether proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury is causally related to the motor vehicle accident;
(f) whether proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury is reasonable and necessary in the circumstances;
(g) whether radiological investigations for the shoulder, as referred by Dr Guirgis is causally related to the motor vehicle accident;
(h) whether radiological investigations for the shoulder, as referred by Dr Guirgis is reasonable and necessary in the circumstances;
(i) whether proposed two facet/z joint injections to the right shoulder is causally related to the motor vehicle accident;
(j) whether proposed two facet/z joint injections to the right shoulder is reasonable and necessary in the circumstances;
(k) whether proposed one facet/z joint injection to the right hip is causally related to the motor vehicle accident;
(l) whether proposed one facet/z joint injection to the right hip is reasonable and necessary in the circumstances;
(m) whether any domestic assistance as recommended by Dr Skafi is causally related to the injuries sustained in the motor vehicle accident, and
(n) whether any domestic assistance as recommended by Dr Skafi is reasonable and necessary to the injuries sustained in the motor vehicle accident.
The Medical Assessor found the following injuries caused by the motor accident gave rise to a whole permanent impairment (WPI) of 0%:
(a) lumbar spine - soft tissue injury;
(b) right hip - soft tissue injury;
(c) abdomen - hernia repairs, and
(d) right shoulder - soft tissue injury.
The Medical Assessor found the following treatment and care:
(a) proposed 12 consultations with Dr Guirgis, orthopaedic surgeon, in relation to the lumbar spine injury;
(b) proposed five consultations with Dr Halder, endocrine surgeon, in relation to the hernia;
(c) proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury radiological investigations for the shoulder, as referred by Dr Guirgis proposed two facet/z joint injections to the right shoulder proposed one facet/z joint injection to the right hip;
(d) any domestic assistance as recommended by Dr Skafi, and
(e) proposed magnesium, as recommended by Dr Guirgis,
did not relate to the injuries caused by the motor accident.
The Medical Assessor found the following treatment and care:
(a) proposed 12 consultations with Dr Guirgis, in relation to the lumbar spine injury;
(b) proposed five consultations with Dr Halder, in relation to the hernia;
(c) proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury radiological investigations for the shoulder, as referred by
Dr Guirgis proposed two facet/z joint injections to the right shoulder proposed one facet/z joint injection to the right hip;(d) any domestic assistance as recommended by Dr Skafi, and
(e) proposed magnesium, as recommended by Dr Guirgis,
is not reasonable and necessary in the circumstances.
On 30 October 2024 the claimant lodged a form of notice of discontinuance. The notice discontinued the review of an assessment of WPI as the claimant has been assessed recently over the threshold by Medical Assessor Shen regarding her psychiatric disability.
The assessment with regard to the claimant’s treatment dispute and its causation remains on foot and is only for consideration now by this Panel.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]). The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
The accident
The accident occurred on 5 September 2019. The claimant was a driver of a car and was wearing a seatbelt. The motor vehicle accident occurred around 3.00pm in a 40km school zone. The claimant’s vehicle was stationary and was struck from behind. There were only two cars involved in the accident. As a result of the impact, the airbags did not deploy.
Claimant’s submissions
The claimant relies on various submissions dated:
(a) 26 June 2024;
(b) 23 February 2023;
(c) 16 March 2023;
(d) 1 March 2023;
(e) 30 January 2023;
(f) 2 February 2023;
(g) 11 February 2022, and
(h) 19 March 2020.
Physical injuries/whole person impairment
By way of summary, the claimant submits that a medical dispute arose between the claimant and the insurer with the issues being:
(a) whether the claimant's degree of permanent impairment as a result of the physical injuries caused by the accident on 5 September 2020 is greater than 10%;
(b) whether treatment and care relate to an injury caused by the accident, and
(c) whether such treatment and care are reasonable and necessary in the circumstances.
The claimant’s submissions with respect to permanent impairment are noted below as they are relevant to his overall physical condition, needs and causation.
The claimant submits that as a result of the accident, she subsequently suffered a consequential right shoulder injury. The Medical Assessor determined the claimant had suffered an injury to her right shoulder which was caused by the motor accident.
The claimant submits that this injury was sustained when she suffered "two falls due to dizziness'', which in turn were caused by the side effects of medication prescribed for her psychiatric injury. The claimant says that Dr Younan, her treating psychiatrist reported that the ".. side effects of Deptran which is the current anti-depressant that Mrs Ahmad takes include fatigue, dizziness, drowsiness, fight-headedness, confusion”. The claimant submits that in the absence of other causes for dizziness, it is very likely that the fall she had and which she informed about on 19 August 2021, was related to this anti depressant. Dr Younan said this and further stated that as a result of the fall, she sustained injuries to the muscles of her chest and to her right shoulder. He went on to say that it was quite possible then that the prescribed anti-depressant had caused the fall and the subsequent injuries.
The claimant says that the Medical Assessor reported an equal "abnormal range of motion" in respect to the injured right shoulder and the injured left shoulder (left shoulder injured in 2005). The claimant submits that the range of motion measured by the Medical Assessor was significantly less than that recorded by Dr Bentivoglio at the time of his examination on 23 September 2022 and the range of motion as recorded by Dr Guirgis at the time of examination on 12 May 2022. The claimant submits that this would indicate a deterioration of her maximum range given that the left shoulder had been injured in a previous accident. Therefore, the claimant submits the impairment value corresponding with the injured joint cannot serve as a baseline.
The claimant submits that the Medical Assessor has fallen into error and failed to comply with cl 6.50 of the Motor Accident Guidelines (the Guidelines) in that the Medical Assessor noted inconsistency in the range of motion of both shoulders and proceeded to rely upon this method for evaluating impairment. Clause 6.50 (d) of the Guidelines requires that "if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)".
The claimant submits that the Medical Assessor refers to much of the relevant available evidence however, he failed to refer to any of the available investigations especially in circumstances where an inconsistency in the range of motion of both shoulders has been identified by the Medical Assessor.
The claimant submits that available to the Medical Assessor was an ultrasound of the right shoulder which showed evidence of partial thickness tear of the supraspinatus tendon on a background of supraspinatus tendon and subscapularis tendonitis. The claimant says that the ultrasound further identified subacromial/subdeltoid bursitis with bursal bunching on abduction. The claimant submits that the Medical Assessor has fallen into error failing to correlate, review and/or give proper weight to the available investigations and the claimant's complaints. The claimant submits that, in accordance with the Guidelines, “The medical assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports”. The claimant says that the Medical Assessor recorded "there were no imaging studies to review" however, the claimant submits that the Medical Assessor failed to address and confirm whether the reports of the relevant radiological and medical imaging and other investigations were relied upon.
Regarding the claimant’s right hip, the claimant submits that the Medical Assessor determined the right hip injury was caused by the motor accident and which gave rise to a permanent impairment of 0%.
The claimant submits that the available evidence suggests she sustained partial thickness traumatic labral tears of the right hip as diagnosed by Dr Guirgis with tendonitis and trochanteric bursitis. The claimant says that this diagnosis is supported by ultrasounds of 14 November 2019, 6 October 2022 and an MRI scan of 6 April 2020.
The claimant submits that trochanteric bursitis is a painful condition requiring the claimant to undergo ultrasound guided injections on 22 November 2019,
24 August 2020, 16 February 2021 and noting pre-injection pain score of 9/10 and a post-injection pain score of 5/10 as a result of treatment.The claimant says that she reported to Dr Guirgis the continuing pain with "clicking and sense of weakness and stiffness in the right hip”.
The claimant says that similarly, she reported to Dr Bentivoglio of pain present in her back, who said "the pain is present even at rest”. The pain radiates down her right lower limb extending as far as her knee. The back and lower limb symptoms are equal in severity.
The claimant says that the Medical Assessor adopted the range of motion method when assessing the right hip injury in accordance with table 6.6 of the Guidelines and table 40 of the Guidelines as did Dr Guirgisnd Dr Berry. The claimant submits that the findings on examination of pain causing restriction when correlated with the available investigations of the right hip injury with non-verifiable complaints is best classified as a mild impairment attracting 2% WPI.
The claimant noted that the Medical Assessor referred to much of the relevant available evidence however, the claimant submits that he failed to refer to any of the available investigations relating to the right hip injury or to give proper weight to the available evidence and claimant's complaints of pain. The claimant says that the Medical Assessor stated that there were no imaging studies to review however, the claimant submits that reports of ultrasound and MRI studies performed in relation to the right hip injury were available to him at the time of examination as part of the available evidence. The Medical Assessor had determined the right hip injury was caused by the motor accident and assessed the injury as satisfying the criteria for diagnostic related estimate (DRE) category I will with an impairment rating of 0%.
Regarding the claimant’s lumbar spine, the claimant says that the Medical Assessor referred to much of the relevant available evidence however, he again failed to refer to any of the available investigations relating to the lumbar spine injury or to give proper weight to the available evidence and claimant's complaints.
The claimant says that the investigation findings included mild disc herniation of the mid lumbar spine, slightly more prominent at L4/5 and that at the L4/5 level there is a mild facet joint arthropathy on the left and moderate facet joint arthropathy on the right.
The claimant submits that Dr Bentivoglio correlated the investigations and found that the claimant had sustained some degree of discal damage to her lumbar spine as a result of the motor vehicle accident.
The claimant submits that Dr Guirgis was of the opinion the accident aggravated degenerative changes and rendered them symptomatic. The claimant says that
Dr McKechnie, her treating neurologist recorded complaints " ..of lower back pain radiating into both legs, worse on the right side. She also complained of right hip pain. I have referred her for lumbar spine MRI to investigate her radicular leg pain and wilt review her progress again in the next few weeks to discuss treatment options."Regarding the hernia injury suffered by the claimant, it is submitted that the Medical Assessor found that the consequential injury to the abdomen resulting in hernias was an injury which had been caused by the accident.
The claimant submits that the Medical Assessor recorded that the hernias were sustained as a result of two falls which occurred due to the side effects of medication prescribed for the claimant's psychological injury. Consequent on this, it was said that this medication brought about dizziness causing the claimant to fall and sustain the hernias and an injury to her right shoulder as stated above.
Treatment dispute
The claimant sought approval for 12 consultations with Dr Guirgis the claimant's treating orthopaedic surgeon for the period 12 February 2020 to 1 March 2023. The insurer determined that the requested treatment was not reasonable and necessary for treatment of a soft tissue injury.
The claimant submits that the accident need only be a material contribution to the proposed treatment and the Medical Assessor has fallen into error by failing to consider the test for causation and whether the treatment would not have arisen but for the occurrence of the motor accident.
The claimant says that she was referred to Dr Guirgis by her treating general practitioner (GP) for further treatment and opinion of the injuries caused by the accident. The claimant submits it is reasonable for the GP to seek further opinion and guidance as to the management of the claimant's injuries.
Whether treatment and review provided by Dr Halder with respect to the hernia injury is reasonable and necessary
Whether the hernia surgery performed by Dr Halder was reasonable and necessary
The claimant says that the Medical Assessor said that the hernias had been surgically treated and were no longer present.
The claimant noted that the Medical Assessor recorded the hernias were sustained as a result of two falls which occurred due to the side effects of medication prescribed for the claimant's psychological injury whereby the medication brought about dizziness causing the claimant to fall and sustain the hernias and an injury to her right shoulder as stated above.
The claimant submits that the Medical Assessor failed to provide adequate reasons for finding that the hernia related consultations with Dr Halder were not reasonable and necessary in light of the available evidence.
The claimant submits that the Medical Assessor fell into error in a material respect in determining that the treatment was not related to the subject accident and the injuries caused by the accident.
The claimant says that the Medical Assessor refers to much of the relevant available evidence however, the claimant says that he fails to refer to the report of Dr Halder relating to a pre-operative consultation on 12 January 2022 addressing procedure for repair of the hernias. The claimant says that the Medical Assessor failed to give proper weight to the available evidence and in doing so has mistakenly arrived at the wrong conclusion.
The claimant says that the Medical Assessor failed to determine the requested outcome with respect to the hernia surgery performed by Dr Halder.
Whether physiotherapy treatment is reasonable and necessary - right Hip Injury physiotherapy
The claimant sought approval of eight sessions of physiotherapy treatment in respect of her right hip injury for the period 13 February 2019 to 1 March 2023. The insurer determined there was no evidence which supported that the treatment would provide any benefit and therefore denied liability.
The claimant says that the treatment period for which physiotherapy treatment is sought by the claimant arose within three months of the accident. The claimant submits the Medical Assessor failed to provide reasons why the treatment was not causally related to the physical injuries sustained in the accident and why such treatment would not be reasonable and necessary in light of the available evidence.
Radiological investigations of the right shoulder
The Medical Assessor determined that "Further investigations cannot be medically justified for the physical injuries sustained by Ms Admad [sic]”. The claimant says that the Medical Assessor was not required to determine this dispute as it was not a dispute put before the Commission. The Medical Assessor was required to determine a dispute in respect of past investigations undertaken by the claimant and whether those investigations were reasonable and necessary in the circumstances.
The claimant submits that following the falls caused by the side effects of medication prescribed for the claimant's psychological injury the claimant was referred for investigation of the right shoulder injury by way of ultrasound performed on
12 March 2021 resulting in findings of tendonitis and a partial thickness tear.The claimant submits the Medical Assessor has fallen into error in a material respect by misinterpreting the claimant's application in respect of this investigative treatment.
Whether ultrasound guided injections to the right shoulder and right hip are reasonable and necessary
The claimant says that she underwent the following injections to the right hip and right shoulder which are disputed by the insurer on the basis that those injuries were not caused by the accident:
Right hip:
(a) 21 February 2019- Ultrasound guided injection right greater trochanter;
(b) 24 August 2020 - Ultrasound guided injection right trochanteric bursa;
(c) 16 February 2021- Ultrasound guided right hip bursa injection, and
(d) 28 September 2022 - Ultrasound guided right trochanteric bursa injection.
Right shoulder:
(a) 29 March 2021 - ultrasound guided right shoulder bursa injection.
The claimant submits that the outcome sought has not been determined by the Medical Assessor.
Requested outcome: whether domestic assistance is reasonable and necessary
The claimant says that Dr EI-Skafi requested the insurer to approve domestic assistance as the claimant was struggling to perform domestic duties ".. especially vaccuming [sic] and cleaning inside the house .." due to the injuries caused by the accident and consequential complex chronic pain.
The claimant submits that Dr Guirgis believed the claimant "remains unfit for heavy manual handling activities. As such she is in need for home help with heavier type of home chores on a 3 hours/day, 2 days/week basis."
The claimant submits that Dr Berry is of the opinion that the injuries caused by the accident significantly interfere with her ability to carry out home duties.
The claimant notes that the Medical Assessor determined that the "physical injuries sustained by Ms Ahmad are not of sufficient severity to justify the provision of domestic assistance”.
The claimant submits that in light of these submissions provided in respect of the lumbar spine injury the Medical Assessor has fallen into error in a material respect. In regard to this finding.
Insurer’s submissions
Permanent impairment – right shoulder
The insurer noted that the Medical Assessor referred to the claimant reporting ongoing pain in the right shoulder.
The insurer says that examination of both shoulders showed inconsistent movements but the same maximum movements in all directions. There were no neurological abnormalities or discrepancies in the circumference of the upper extremities.
The insurer highlights that the claimant informed the Medical Assessor that her pain in the left shoulder following a motor vehicle accident in 2005 had resolved.
The insurer says that the Medical Assessor found the only applicable method for evaluation of right shoulder impairment to be the method relating to abnormal range of motion. The Medical Assessor concluded that, using that method, there was 0% WPI.
The insurer says that cl 6.50(e) of the Guidelines disallows "range of motion measurements" to be used but gives the Medical Assessor discretion to use other evidence to determine the impairment. The insurer submits that Medical Assessor Cameron did not use the right shoulder's measurements in evaluating the impairment and instead used the observation of symmetrically restricted movements in the two shoulders to reach the conclusion of 0% WPI.
The insurer submits that the observation of symmetry is not a measurement and that using the available evidence of symmetry is within the Medical Assessor's discretion under cl 6.50(e) of the Guidelines.
The insurer refers to the claimant’s submissions in relation to the Medical Assessor's failure to discuss an ultrasound scan report of the right shoulder. The insurer noted that the report found bursitis and a partial thickness tear of the supraspinatus and that its reporting date was 12 March 2021.
The insurer submits that the claimant has not shown that a different finding would be made on examination had the Medical Assessor made reference to the claimant's right shoulder scan report. That is, the claimant has not shown the materiality of this failure, given the findings on examination.
Permanent impairment – right hip
The insurer submits that on examination, the Medical Assessor noted full range of motion at lower extremity joints including the hips. The Medical Assessor noted that pain was reported on movement of the right hip.
The insurer says that the claimant made submissions on the basis that the Medical Assessor made a finding of pain causing restriction.
The insurer submits that the claimant's submissions are not applicable because there was in fact no finding of restriction.
The insurer referred to the claimant making further submissions regarding the Medical Assessor's failure to refer to the claimant's right hip scan reports or complaint of pain. The insurer says that the Medical Assessor did refer to the claimant's complaint of pain.
The insurer submits that the claimant has not shown that a different finding would be made on examination had the Medical Assessor made reference to the claimant's right hip scan reports.
Permanent impairment – lumbar spine
The insurer referred to the claimant making submissions regarding her lumbar spine that non-verifiable complaints were present and relied on the opinions of Dr Bentivoglio, Dr Berry and Dr Guirgis.
The insurer referred to the Medical Assessor recording the claimant's complaint of low back pain and right thigh pain as current symptoms. On examination, the Medical Assessor observed:
"…moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative." (p6)
The insurer submits that the claimant's submissions are not applicable because there was no finding of non-verifiable radicular complaints on examination.
The insurer says that for the avoidance of doubt, it notes that there is no inconsistency between the claimant's complaint of "right thigh pain" and the Medical Assessor's observation on examination that there were no "non-verifiable radicular complaints".
The insurer referred to the claimant again making submissions regarding the Medical Assessor's failure to discuss the claimant's scan reports or complaint of pain.
The insurer repeated its submission that the claimant had not addressed the materiality of the failure to discuss the scan reports.
The insurer again submitted that the Medical Assessor did refer to the claimant's complaint of pain.
The insurer submits that the Medical Assessor had adequately taken into account the claimant's complaints of pain in assessing DRE category I.
Treatment – 12 consultations with Dr Guirgis
The insurer submits that a Medical Assessor is only empowered to assess the medical dispute defined by the parties (Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71).
Regarding this submission, the insurer says that the dispute referred to the Medical Assessor was whether "12 consultations with Dr Guirgis" were caused by the motor vehicle accident and not whether any one of those consultations was so caused.
The Medical Assessor found that 12 consultations with Dr Guirgis were excessive for the physical injuries sustained. The Medical Assessor had determined that the claimant sustained soft tissue injuries in the accident. The insurer relies on the report by
Dr Bentivoglio to submit that the claimed treatment is not reasonable and necessary.
Dr Bentivoglio confirmed that the claimant does not require any additional orthopaedic review for her alleged lumbar spine injury.The insurer submits that the accident did not materially contribute to a need for 12 consultations with an orthopaedic surgeon.
Treatment – five consultations with Dr Halder
The insurer submits that the dispute referred to the Medical Assessor was whether five consultations with Dr Halder, an endocrine surgeon, were caused by the accident, not whether any one of those consultations was so caused. The insurer maintains that any hernias are consequential to the side effects of anti-depressants prescribed by Dr Younan for the claimant's pre-existing psychological injury.
The insurer says that the Medical Assessor found that the hernias had been surgically treated and were no longer present and concluded that five consultations with Dr Halder were not related to injuries sustained in the accident.
The insurer submits that the accident did not materially contribute to a need for five consultations with an endocrine surgeon.
Treatment – physiotherapy
The insurer says that the dispute before the Medical Assessor was whether "8 sessions of physiotherapy with Y. Zhuang in relation to the right hip injury" were caused by accident.
The insurer says that the only request regarding physiotherapy was a request for "further physio", for which an internal review was completed on 11 March 2022.
The insurer says that, in contrast, Mr Zhuang's requests for approval of physiotherapy treatment dated 13 December 2019 and 31 December 2019, as referred to in the claimant's review application, were not referred to the Medical Assessor.
The insurer submits that the Medical Assessor adequately assessed the medical dispute referred to him.
Treatment – radiological Investigations as referred by Dr Guirgis
The insurer submits that the dispute before the Medical Assessor was whether "radiological investigations as referred by Dr Guirgis" were caused by the motor vehicle accident.
The insurer says that the claimant had not made a request for specific treatment and that the claimant was referring to treatment recommended in general terms.
The insurer says that a recommendation was made in general terms by Dr Guirgis in a report dated 18 May 2022, found at p 138 of the claimant's bundle before the Medical Assessor, stating:
"In regards of the cost of future conservative treatment per year:
…Consultations with specialists including radiography etc. $1,000"
Regarding this recommendation, the insurer says that the ultrasound scan performed on
12 March 2021, as referred to in the claimant's review application, was not referred to the Medical Assessor.The insurer submits that the Medical Assessor adequately assessed the medical dispute referred to him.
Treatment – facet/z joint injections
The dispute before the Medical Assessor was whether "facet/z joint injections for the right shoulder and right hip" were caused by the accident.
The insurer submits that ultrasound-guided injections to the right shoulder and right hip were not referred to the Medical Assessor.
The insurer submits that the Medical Assessor adequately assessed the medical dispute referred to him.
Treatment – domestic assistance
The insurer submitted that the claimant repeated her submissions made regarding the assessment of permanent impairment in the lumbar spine for the assessment regarding domestic assistance.
The insurer repeats its submission that the claimant's submissions are not applicable because there was no finding of non-verifiable radicular complaints on examination and that the Medical Assessor is not required to address alternative medical opinions.
The insurer submits that the claimant has not shown that different findings would be made on examination had the Medical Assessor made reference to the claimant's right shoulder, right hip or lumbar spine scan reports.
The insurer highlights that, contrary to the claimant's submissions, there was no finding of restriction in the right hip or finding of non-verifiable radicular complaints relating to the lumbar spine.
In relation to treatment, the insurer highlights that the dispute referred to the Medical Assessor was whether "12 consultations with Dr Guirgis" or "5 consultations with Dr Halder" were caused by the accident, not whether any one of those consultations was so caused.
The insurer submits that the Medical Assessor has adequately set out his path of reasoning for arriving at the opinion that the motor vehicle accident did not materially contribute to a need for 12 consultations with an orthopaedic surgeon or five consultations with an endocrine surgeon.
The insurer submits that the alleged treatment disputes regarding physiotherapy, radiological investigations, and injections discussed in the claimant's review application were not the ones referred to the Medical Assessor.
WPI submissions
The insurer submits that regard should be had to the claimant's history of relevant pre-accident conditions, which are outlined below:
(a) in 2005, a prior motor vehicle accident in which she injured her neck, left shoulder and upper back. She also developed signs of chronic pain, anxiety, and depression. The insurer reserves the right to provide further submissions once particulars of this claim and the claim file is received, and
(b) the claimant received psychological treatment from Dr Younan between
2 May 2013 and 12 June 2014. Dr Younan diagnosed mixed anxiety and depression. The claimant was prescribed Endep, Lexapro, Efexor and Valium.The insurer submits that the claimant's WPI does not exceed 10%.
The insurer says that any impairment arising from her right shoulder is not related to the subject accident.
The insurer submits that the claimant is exaggerating the extent of her alleged injuries, as observed by Dr Bentivoglio in September 2022.
The insurer says that there are potentially other causes of the claimant's fall, such as medication, which should be explored.
The insurer relies on a report of Dr Bentivoglio 26 September 2022 who assessed WPI as follows:
(a) lumbar spine – 5% WPI;
(b) right shoulder – 7% WPI, and
(c) right hip – not assessable.
The insurer says that the claimant sustained some discal damage in the lower, most fully, mobile segment of her back.
The insurer submitted that there are inconsistencies present with respect to the alleged "fall". Dr Bentivoglio described the alleged fall (that is, her lower limbs giving way on her) as an "unusual scenario with the back complaints". The insurer submits that Dr Bentivoglio identified the peculiarity of the claimant's recount. The insurer referred to treating records of Dr Younan the claimant's treating psychiatrist, which made reference to the claimant falling because the medication he prescribed had caused dizziness.
The insurer submits that the claimant exhibited signs of exaggeration during her examination with Dr Bentivoglio. Dr Bentivoglio reported that she displayed "quite gross" signs of exaggeration. For example, the claimant demonstrated diminished motor power involving all muscle groups in her right leg.
The insurer submits that Dr Bentivoglio found that neither the right hip nor the right shoulder injuries were caused by the accident.
The insurer referred to the claimant’s allegation that, because of her alleged accident injuries, she has now developed consequential injuries to the right shoulder and arm due to subsequent falls, as well as a consequential hernia.
The insurer relies on the expert opinion of Dr Bentivoglio who confirmed that the claimant's right shoulder symptoms were not caused by the accident.
The insurer maintains that these alleged injuries are not related to the subject accident. The insurer submits that there is a clear pattern throughout the medical evidence that Dr Younan, psychiatrist, had prescribed the claimant medication which caused dizzy spells on at least two occasions, resulting in falls.
The insurer also highlights that the claimant suffered from previous shoulder pain, as early as February 2019.
Medical evidence
Dr Bentivoglio referred to the investigations and found that the claimant had sustained a degree of discal damage to her lumbar spine as a result of the accident.
Dr Bentivoglio said that the claimant would have sustained some degree of discal damage at the L5/S1 level of the lumbar spine in the accident. On examination however, he said that there was no evidence of any nerve root irritation or compression to suggest she would benefit from more aggressive forms of treatment. Dr Bentivoglio also commented that the claimant exhibited quite marked signs of exaggeration of complaints. He did not believe any modality of treatment would make any difference to her symptoms.
Regarding the claimant’s right shoulder, the claimant informed the doctor that she fell and investigations done of her shoulder in March 2021 indicated she did sustain partial tearing of her supraspinatus tendon in her right shoulder together with subacromial bursitis. She has undergone appropriate treatment for this with an ultrasound-guided cortisone injection but this did not successfully alleviate her symptoms. He said that she should probably have an MRI scan done of her shoulder to determine whether the subacromial bursitis has now resolved and possibly should see an orthopaedic surgeon with an interest in shoulders if it turns out that the MRI scan indicates ongoing subacromial bursitis and definite tearing of the supraspinatus tendon. He said that she was not at risk, however, of developing degenerative osteoarthrosis involving her shoulder at a later stage.
Dr Bentivoglio was not satisfied that the claimant would have suffered a fall with her legs giving way because of any accident-related cause. However, he said that this would have been an unusual scenario with back complaints causing her to fall. He did not consider though, this that she may have fallen due to collapsing caused by medication.
The Medical Assessor recorded the hernias were sustained as a result of two falls which occurred due to the side effects of medication prescribed for the claimant's psychological injury whereby the medication brought about dizziness causing the claimant to fall and sustain the hernias and an injury to her right shoulder as stated above.
Dr Bentivoglio said that abnormalities seen on her investigations of her lumbar spine were relatively minor.
Dr Bentivoglio assessed WPI as follows:
(a) lumbar spine – 5% WPI;
(b) right shoulder – 7% WPI, and
(c) right hip – not assessable.
Dr Guirgis believed the accident had aggravated degenerative changes and rendered them symptomatic.
The claimant was referred to Dr Guirgis by her GP for further treatment and opinion of the injuries caused by the accident. The claimant submitted it was reasonable for the GP to seek further opinion and guidance about the management of the claimant's injuries.
Several reports from Dr Guirgis which formed the claimant’s bundle of documents were badly reproduced or illegible. He diagnosed post-traumatic mechanical derangement of the lumbar spine. This was caused by musculoligamentous sprain/strain with L4/5 intervertebral disc involvement. He said that this had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes
Dr McKechnie, the claimant's treating neurologist recorded complaints “..of lower back pain radiating into both legs, worse on the right side. She also complained of right hip pain. I have referred her for lumbar spine MRI to investigate her radicular leg pain and wilt review her progress again in the next few weeks to discuss treatment options.”
Dr Berry considered that the claimant's ability to carry out home activities including home duties and carry out any recreational activities would be significantly interfered with. He said that the claimant did have pre-existing impairments which affected her neck and the left shoulder as a result of her 2005 accident. There was no history of injury to the low back, right shoulder or right hip in that accident.
Dr Berry said that the conditions that had been diagnosed were soft tissue injuries to the right shoulder, lumbar spine and right hip. The claimant was found post-accident to have an umbilical hernia and a rectus muscle hernia in the lower abdomen, both of which had been repaired. He considered that these were a direct consequence of her rear-end motor vehicle accident.
Dr Berry assessed the claimant as having a total WPI on the combined values chart of 17%. This was made up as follows:
(a) right shoulder - 5%;
(b) lumbar spine - 5%;
(c) right hip - 8%, and
(d) hernia - 0%.
Dr El Skafi, the claimant’s GP, was of the opinion the claimant required domestic assistance due to difficulties performing her usual activities as a result of her physical and psychological injuries. He referred the claimant to Dr Halder, surgeon, for repair of her hernias and he underwent surgery at Auburn Hospital in 2022. The claimant sought the cost of (a) surgery and (b) five consultations with Dr Halder.
The Medical Assessor found that the following injuries were caused by the motor accident:
(a) lumbar spine - soft tissue injury;
(b) right hip - soft tissue injury;
(c) abdomen - hernia repairs, and
(d) right shoulder - soft tissue injury.
The Medical Assessor assessed 0% for all of these injuries.
He said that “the Nguyen judgment issues” do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.
The hernias had been surgically treated and therefore were no longer present.
Regarding treatment, the Medical Assessor said that 12 consultations with Dr Guirgis were excessive and could not be medically justified for the physical injuries that the claimant had sustained. The five consultations with Dr Halder were not related to injuries sustained in the subject accident. Further physiotherapy for the right hip injury could not be justified within the Clinical Framework for provision of health services. Further investigations could not be medically justified for the physical injuries sustained by the claimant.
The Medical Assessor said that facet joints are to the spine and hence cannot be causally related when applied to the shoulder or hip.
The Medical Assessor said that the claimant’s physical injuries were not of sufficient severity to justify the provision of domestic assistance.
The Medical Assessor also said that there was no evidence that magnesium was an effective treatment for the injuries sustained by the claimant.
The claimant had been examined for her psychiatric disabilities and had been found to have suffered a psychiatric disorder. Other than with respect to the medication taken by the claimant as prescribed by her psychiatrist, the psychiatric issues do not impact on the consideration of the Panel.
The claimant had been separately assessed by Medical Assessor Korbel for a voiding dysfunction of her bladder. He assessed WPI for this disability at 5%. He provided his certificate on 1 May 2024.
Within the documentation forming the claimant’s bundle, there is a statement from the claimant dated 31 August 2022.
Regarding her medication and the falls, which she said occurred as a consequence of this, the claimant said that she was continuing to consult Dr Younan who prescribed further medication to assist her. She said that the medication made her feel dizzy and she suffered a number of falls because of it. On one occasion she said that she recalled feeling dizzy when she was in her bathroom at home. She could not hold herself up and fell heavily onto the tiled floor. She said that she felt pain in her back, right hip, right leg, abdomen and right shoulder and felt pain in her chest area especially when breathing. She also complained that she felt additional neck pain.
On another occasion she said that she was standing on the balcony of her family unit. She was feeling very dizzy and then she dropped and fell down and hit her head.
The claimant returned to see Dr Younan in about November 2020 and informed him of the dizziness she experienced and of the numerous falls. The claimant said that due to her medication causing her dizziness, she asked Dr Younan to change this. The claimant reported that Dr Younan informed her to stop taking the medication and prescribed alternative medication. The claimant said that once she stopped taking the medication, the dizziness stopped, and she did not suffer any further falls.
Medical examination
The claimant was medically examined by Medical Assessor Gorman on behalf of the Panel on 31 January 2025. His report follows,
Ms Ahmad was accompanied by Arabic interpreter, Claudia El Vrihi.
HISTORY
Pre-accident medical history and relevant personal details Ms Ahmad is living at Rose/ands with her 19-year-old son.
Ms Ahmad is a 49-year-old women.
She lives with her ex-husband and son.
She had been previously well.
She was a non-smoker and did not drink alcohol.
At the time of the motor vehicle crash, Ms Ahmad was working in a primary school in a role as a community educator and facilitator.
Ms Ahmad had a motor vehicle crash in 2005 with ongoing left shoulder pain. This is said to have eventually resolved.
History of the motor accident
On 5 September 2019, Ms Ahmad was the driver of a vehicle, and her son was also in the vehicle. She was at traffic signals. Her vehicle was hit from behind.
The airbags did not activate. Ms Ahmad exchanged details, waited at the scene for a time and then drove home.
She recalled immediate back pain, shoulder pain and right leg pain.
History of symptoms and treatment following the motor accident
Ms Ahmad subsequently consulted her usual general practitioner, Dr Al Skafi.
Ms Ahmad said that she had some symptoms but was able to continue work without a break. She said she was anxious about retaining her position.
Ms Ahmad said that she later had worsening back pain, right leg pain and bladder problems. She had to reduce her work.
She saw Dr Guirgis who arranged cortisone injections in the lumbar spine.
She saw Dr McKechnie who suggested ongoing conservative care for her
Ms Ahmad said there had been two falls due to dizziness. As a result, she developed right shoulder pain and abdominal hernias. She reported that she had some abdominal pain after the accident which worsened after the fall – the hernias were then diagnosed.
She had steroid injections in her right shoulder.
She said in 2022 at Auburn Hospital, Dr Halver repaired an umbilical hernia and also a right inguinal hernia. Ms Ahmad said she had COVID around that time and also had significant coughing.
The insurer did not pay for the abdominal surgery.
Details of any relevant injuries or conditions sustained since the motor accident
She had a number of falls as anti-depressants made her dizzy. She has had fall in the bath in 2020 she reported.
Current symptoms
She continues to have pain in the right leg.
She cannot sit for very long due to low back pain. The whole right leg can go “numb”. There is burning pain on the inside of the right leg.
She has pain in the right shoulder down the right arm.
Ms Ahmad said that she had become depressed with the pain.
She said “her whole life has changed because of the accident”. She says “everything aches”.
She says “she has no energy to talk about her pain”. She cannot study and “all her dreams are gone”.
She stated that she “needed treatment to continue my life”.
Ms Ahmad said that her sleep was poor. She said she had difficulty with reaching down to her feet and household tasks. She said that she was driving only locally.
Ms Ahmad continues to work at a local school 3-5 days per week – she was currently on school holidays so not working.
Current and proposed treatment
Current medications are Panadol Osteo, Nurofen, Voltaren Gel, arnica topical cream, ICE cold patches or DEEP Heat patches on the buttocks and occasional Indocid suppositories.
Ms Ahmad has had a few sessions of physiotherapy through Medicare arrangements – she cannot afford this. She confirmed she had had about 30 physiotherapy treatments in total after the accident.
She cannot have the recommended cortisone injections as the Radiologist does not bulk-bill.
CLINICAL EXAMINATION
General presentation
She moved slowly but easily around the consultation room.
She cried frequently as she spoke about the accident.
Ms Ahmad is right-handed, 152cm in height and weighs 98.7kg. This is a BMI of 40 placing her in Class 3 Obesity.
Cervical spine
At the cervical spine there was moderately and symmetrically reduced range of motion (to 3/4 normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
Nerve tension signs were negative.
Shoulders
She had restricted range of motion in the right shoulder. She could reach her occiput on both sides but on the right could only reach the T12 spinous process and on the left could reach normally to the T7 spinous process. She reported that she has trouble with her bra because of this.
The ranges of motion are outlined in the table below. These movements were measured with a goniometer and were reproducible.
| SHOULDER MOVEMENT | RIGHT (degrees) | LEFT (degrees) |
| Flexion | 90 | 180 |
| Extension | 40 | 50 |
| Abduction | 90 | 180 |
| Adduction | 30 | 50 |
| Internal rotation | 70 | 80 |
| External rotation | 80 | 90 |
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right biceps measured 10cm above lateral epicondyle 36cm on the right and left - the forearm measured 5cm below the lateral epicondyle was 29cm on the right and left.
Lumbar spine
At the lumbar spine there was moderately reduced range of motion – flexion was 2/3 normal with pain over the right buttock, extension to ½ normal and lateral flexion to ¾ normal to the left and right. There was no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
Nerve tension signs were negative.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities (calf) measured 10cm below tibial tubercle were right 47cm and left 47cm.
Abdomen – hernia repairs
There was a 2cm surgical scar inferior to umbilicus and 5cm right groin scar, both consistent with the history of surgery. The abdomen was soft and non-tender. There were no hernia present. There were no masses.
Lower extremities - hips
Ms Ahmad walked with a normal gait.
There was a full range of motion at both knees. There was no crepitus or instability.
Pain was reported on movement of the right hip but the range of motion as outlined below was normal.
| HIP MOTION | RIGHT (Degrees) | LEFT (Degrees) |
| Flexion | 100 | 100 |
| Extension | 10 | 10 |
| Adduction | 20 | 20 |
| Abduction | 40 | 40 |
| Internal rotation | 30 | 30 |
| External rotation | 50 | 50 |
Comments on consistency
Ms Ahmad had consistent movement at her shoulders on Assessor Gorman’s examination.
REVIEW OF DOCUMENTATION
Summary of relevant radiological and medical imaging and other investigations
Ultrasound of right shoulder – March 2021 – subacromial bursitis with partial tear of supraspinatus tendon.
Bone scan – March 2020 – right L4/5 facet arthropathy.
MRI scan of lumbar spine – small L5/S1 disc bulge.
Ultrasound of right hip – November 2019; mild tendinosis of gluteal tendons; preservation of joint space.
MRI right hip – April 2020 – mild gluteal tendinosis.
DETERMINATIONS - PERMANENT IMPAIRMENT
Causation and reasons
In the motor vehicle crash on 5 September 2019, Ms Ahmad sustained soft tissue injuries.
This included the lumbar spine which was in pain immediately as was the right hip region.
She complained of shoulder pain after the accident which worsened after falls.
She also had significant psychiatric issues and her treating psychiatrist, Dr Younan, related her falls to the side effects of Deptran. The Panel believes that this is correct. Therefore, the right shoulder complaints, which worsened after the fall in 2020, are related to the motor vehicle accident and are caused by the motor vehicle accident.
There has been surgery for hernias, and they are no longer present. Dr Halder was not certain of the cause of these hernias when he saw her on 12 January 2022 (page 261 in the Claimant’s bundle). Dr Berry in his IME took a history of intermittent pain in the abdomen since the accident and believes that the hernias were due to the accident. Overall, the Panel agrees that the hernias were due to the accident.
Diagnosis and reasons
The diagnoses are as listed below and are established based on the available clinical records and the information provided by Ms Ahmad.
oLumbar spine - soft tissue injury.
oRight hip - soft tissue injury – gluteal tendinosis.
oAbdomen - hernia repairs.
oRight shoulder - soft tissue injury with bursitis, partial rotator cuff tear and probable development of adhesive capsulitis.
Summary of injuries referred for assessment
The following injuries WERE caused by the motor accident:
Lumbar spine - soft tissue injury
oRight hip - soft tissue injury
oAbdomen - hernia repairs
oRight shoulder - soft tissue injury
The lumbar spine injury is not causing sphincter disturbance because there is no evidence of spinal cord injury or any radiculopathy.
DETERMINATIONS - TREATMENT
Treatment and Care - causation
All of the treatments and care requested are causally related to the subject motor accident. There is not a pre-existing or constitutional reason she would have these requested. All requests are related to the injuries accepted.
Treatment and Care - reasonable and necessary
None of the requested treatments requested are reasonable and necessary in the circumstances of the physical injuries caused by the accident.
The 12 consultations with Dr Guirgis (Orthopedic Surgeon) are excessive and cannot be medically justified for the physical injuries that Ms Ahmad sustained. There is no need for ongoing specialist review where no surgical treatment is planned or appropriate.
The five consultations with Dr Halder (General Surgeon) are not required for injuries sustained in the subject motor accident. The hernias have been treated by Dr Halder and no follow-up is required after the initial post-operative period.
Further physiotherapy for the right hip injury cannot be justified as she has had at least 30 sessions. Further passive therapies may perpetuate her symptoms. She needs an active self managed exercise program.
Further investigations cannot be medically justified for the physical injuries sustained by Ms Ahmad. She has had sufficient investigations and examinations to clearly outline the extent of her injuries.
The insurer acknowledges that the use of the words “Facet joints” was a mistake in relation to the right shoulder and right hip. They ask for a determination regarding the hip and right shoulder injections. She has already had shoulder cortisone injections and injections to the right trochanteric bursa. The Panel believes that the right shoulder bursitis has not been responsive to subacromial injections and believes that further injections will not significantly benefit her. The Panel notes that she has already had 4 trochanteric bursal injections in 2019, 2020, 2021 and 2022. The Panel doubts that further injections will be of any benefit.
The physical injuries sustained by Ms Ahmad are not of sufficient severity to justify the provision of domestic assistance. She is back at work. She does have difficulty vacuuming and cleaning the house she reports. Any assistance would only be for heavier aspects of cleaning at the most for 2- hours per month.
There is no evidence that magnesium is an effective treatment for the injuries sustained by Ms Ahmad. This however is not an issue for consideration by the Panel.
PERMANENT IMPAIRMENT
The claimant withdrew her review application for assessment of whole person impairment as she has been found by Medical Assessor Shen to have a psychiatric whole person impairment assessment in excess of 10%.
CONCLUSION -TREATMENT
The following treatment and care DOES relate to the injury caused by the motor
accident:
o proposed 12 consultations with Dr Medhat Guirgis, Orthopaedic surgeon, in relation to the lumbar spine injury
o proposed 5 consultations with Dr Tushar Halder, endocrine surgeon, in relation to the hernia
o proposed 8 sessions of physiotherapy with Y.Zhung in relation to the right hip injury
o radiological investigations for the shoulder, as referred by Dr Medhat Guirgis, Orthopaedic Surgeon
o proposed two facet/z joint injections to the right shoulder
o proposed one facet/z joint injection to the right hip
o any domestic assistance as recommended by Dr EI Skafi
However, the following treatment and care relates to the accident, it IS NOT reasonable and necessary in the circumstances:
o proposed 12 consultations with Dr Medhat Guirgis, Orthopedic surgeon, in relation to the lumbar spine injury
o proposed 5 consultations with Dr Tushar Halder, Endocrine surgeon, in relation to the hernia
§ proposed 8 sessions of physiotherapy with Y.Zhung in relation to the right hip injury
§ radiological investigations for the shoulder, as referred by Dr Medhat Guirgis Orthopaedic Surgeon
§ proposed two facet/z joint injections to the right shoulder
§ proposed one facet/z joint injection to the right hip
§ any domestic assistance as recommended by Dr E I Skafi
The Panel adopts the report and findings of Medical Assessor Gorman.
CAUSATION/REASONS
Section 3.24 of the Act provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts. The section provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
...
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
The question for the Panel is whether the specified treatment relates to the injury resulting from the accident and is reasonable and necessary.
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, and whether the treatment sought is reasonable and necessary and if it arises because of contribution by the accident. Following on from this, the Panel must decide whether the accident materially contributed to those injuries and need for treatment.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips [2018] NSWSC 1710 at [29] . That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the Act.
The insurer referred to the clinical framework for the provision of health services. These are;
(a) measure and demonstrate the effectiveness of treatment;
(b) adopt a biopsychosocial approach;
(c) empower the injured person to manage their injury;
(d) implement goals focused on optimising function, participation and return to work, and
(e) base treatment on the best available research evidence.
The framework sets out a guide for the delivery of health services for the right care at the right time. The insurer has referred to the framework to justify its position that the claimant’s claim cannot be met. Whilst it is not a requirement for these five steps to be satisfied, the Panel notes that there has been limited evidence from the claimant that would meet these steps.
The claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from New South Wales workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW [2003] NSWCA 52, Grove J stated:
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.”
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
Whilst it might be argued that the treatment and care claimed arises out of the accident, it is not, on the finding of the Panel, reasonable and necessary.
As Medical Assessor Gorman said in his examination report, the claimant had immediate back pain, right shoulder pain and right leg pain. This is evidenced by the clinical notes. Her back pain worsened as did her right leg pain and she also had bladder problems.
Regarding the claimant’s bladder problems, she has a separate assessment in that regard of 5% WPI.
After the accident, the claimant had some falls which caused her to land on her right shoulder. The claimant said that she fell because of dizziness. These falls were attributed by her treating psychiatrist, Dr Younan, due to side-effects of psychiatric medication needed because of the accident, Deptran. Ultimately this medication was changed by Dr Younan and since that time the claimant has not suffered dizziness nor has she fallen.
Dr Younan was informed by the claimant on 19 August 2021 that she had fallen. Dr Younan said that one of the side-effects of the medication Deptran, which was her antidepressant medication was, amongst other things, dizziness and light headedness. Dr Younan said that in the absence of other causes for dizziness, it was very likely that the fall which the claimant had was related to this antidepressant. The claimant informed Dr Younan that as a result of the fall, she sustained injuries to her muscles of the chest and her right shoulder. He said that it was quite possible that the prescribed antidepressant had caused the fall and subsequent injuries. There has been no alternative reason provided for the fall/s and the Panel is satisfied on the balance of probabilities that this medication, which was required as a consequence of psychiatric injuries arising from the accident, has contributed to the claimant following and suffering physical injuries.
Also as a result of the accident, it has been submitted by the claimant that she developed abdominal hernias. She had abdominal pain after the accident and this increased after the fall. On examination, subsequently, two hernias were diagnosed, and these were repaired by Dr Halver.
The Panel is satisfied that on the balance of probabilities, as a result of the accident the claimant has suffered injuries to her lumbar spine, her right hip, her abdomen and her right shoulder. Some of these injuries were made worse by the claimant’s subsequent falls which the Panel is satisfied were caused by medication for her psychiatric treatment which, upon change of medication, ceased the claimant’s dizziness and she has not suffered falls since that time.
For the reasons discussed in the examination report of Medical Assessor Gorman, whilst the Panel is satisfied that the claimant suffered certain injuries as a result of the accident, and has had treatment in regard, the Panel is not satisfied that the additional treatment and care claimed is reasonable nor is it necessary.
As Medical Assessor Gorman said in his examination report;
(a) the 12 consultations with Dr Guirgis are excessive and cannot be medically justified for the physical injuries that the claimant sustained. There is no need for ongoing specialist review where no surgical treatment is planned or appropriate;
(b) the five consultations with Dr Halver are not required as the hernias have been treated and no follow-up is required after the initial post operative period;
(c) the claimant has had at least three prior sessions of physiotherapy. No further physiotherapy for the right hip injury can be justified. Further passive therapies may perpetuate her symptoms;
(d) further radiological investigations cannot be medically justified for the physical injuries sustained by the claimant. In the opinion of the Panel, the claimant has had sufficient investigations and examinations to clearly outline the extent of her injuries and she has been treated for that without any further need for treatment arising;
(e) the claimant has had cortisone injections to both her hip and right shoulder. The right shoulder bursitis has not been responsive to subacromial injections, and the Panel could see no justification for further injections which will not significantly benefit her or at all;
(f) the claimant has also had four trochanteric bursal injections. The Panel is not of the finding that further injections will be of any benefit, and
(g) the physical injuries sustained by the claimant are not of sufficient severity to require the provision of domestic assistance recommended by the claimant’s GP. The claimant on the estimate of the Panel requires minimal assistance for heavier cleaning, and not in excess of two hours per month.
No verification or justification has been provided by the claimant about why this additional treatment is reasonable and necessary.
CONCLUSION
The Panel is not satisfied that the treatment and care sought by the claimant is reasonable and necessary.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Cameron of 31 May 2024.
The following treatment and care does relate to the injury caused by the motor
accident:
(a) proposed 12 consultations with Dr Guirgis, orthopaedic surgeon, in relation to the lumbar spine injury;
(b) proposed five consultations with Dr Halder, endocrine surgeon, in relation to the hernia;
(c) proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury;
(d) radiological investigations for the shoulder, as referred by Dr Guirgis, orthopaedic surgeon;
(e) proposed two facet/z joint injections to the right shoulder;
(f) proposed one facet/z joint injection to the right hip, and
(g) any domestic assistance as recommended by Dr EI Skafi.
The following treatment and care is not reasonable and necessary in the circumstances:
(a) proposed 12 consultations with Dr Guirgis, orthopedic surgeon, in relation to the lumbar spine injury;
(b) proposed five consultations with Dr Halder, Endocrine surgeon, in relation to the hernia;
(c) proposed eight sessions of physiotherapy with Y Zhung in relation to the right hip injury;
(d) radiological investigations for the shoulder, as referred by Dr Guirgis, orthopaedic surgeon;
(e) proposed two facet/z joint injections to the right shoulder;
(f) proposed one facet/z joint injection to the right hip, and
(g) any domestic assistance as recommended by Dr EI Skafi.
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