Allianz Australia Insurance Limited as agent of the Nominal Defendant v El Rifi
[2024] NSWPICMP 732
•27 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited as agent of the Nominal Defendant v El Rifi [2024] NSWPICMP 732 |
CLAIMANT: | Assem El Rifi |
INSURER: | Allianz Australia Insurance Limited as agent of the Nominal Defendant |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 27 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor’s (MA) assessment of a treatment dispute; treatment in issue was a lumbar spine MRI requested by the claimant’s GP in November 2022; after the claimant was found to have a non-threshold lumbar spine injury and the insurer accepted that decision the insurer paid for a lumbar spine MRI requested by the claimant’s pain specialist in June 2023; MA determined November 2022 request was reasonable and necessary in the circumstances but gave limited reasons; Held – MRI of part of the body injured in the accident was related to the injury caused by the accident; Medical Review Panel found MRI requested in November 2022 was not reasonable and necessary in the circumstances because the MRI investigation had been done in June 2023; certificate issued by MA dated 5 April 2024 revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Nair dated 5 April 2024. 2. Certifies that the MRI of the lumbar spine requested by Dr Malek on 10 November 2022 is related to the injuries resulting from the accident but is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Assem El Rifi was involved in a motor accident on 17 March 2022. He was a pedestrian, crossing a road in the Sydney suburb or Lakemba, at a marked pedestrian crossing when a black car hit him and he fell, hitting another car.
The claimant says he injured his lumbar spine in the accident and made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made with the Nominal Defendant, as the vehicle that Mr El Rifi says caused his accident has not been identified. Allianz was allocated the claimant to manage on behalf of the Nominal Defendant pursuant to s 2.36 of the MAI Act.
A medical dispute about an MRI of the lumbar spine has arisen in connection with that claim and Mr El Rifi (through his solicitors) referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 5 April 2024, Medical Assessor Nair determined the MRI was related to the injury caused by the accident and was reasonable and necessary in the circumstances.
On 24 April 2024, Allianz lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 4 July 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 8 July 2024, the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
General provisions relevant to treatment
The MAI Act provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits are payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act. There is no dispute in the current proceedings that the Nominal Defendant is the relevant insurer and that Allianz is managing the claim on behalf of the Nominal Defendant.
Section 3.24 provides the entitlement to statutory treatment and care benefits as follows:
“(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.”
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
MEDICAL ASSESSMENTS
Assessment under review
Medical Assessor Nair examined the claimant on 15 March 2024 and issued his certificate on 5 April 2024.
He confirms at [2] that the dispute referred to him was whether an MRI of the claimant’s lumbar spine as requested by Dr Malek on 10 November 2022 was related to the accident and was reasonable and necessary in the circumstances.
The insurer’s objection to the treatment was said at [4] to be based on the insurer’s decision that the claimant’s lumbar spine injury was a “minor” injury.
Medical Assessor Nair has a history of the accident at [9] and the claimant’s development of symptoms in his lower back said to be radiating to his left lower limbs [10] and [11] with current symptoms in his back as well as neck pain [12]. Medical Assessor Nair notes at [13] that a specialist referral was being considered.
On examination of the lumbar spine there was apparent dysmetria in flexion and extension but rotation and lateral flexion was equal on both sides. Reflexes were present and symmetrical but the straight leg raise test was positive on the left side only.
The only radiology referred to by Medical Assessor Nair at [19] was a bone scan dated
6 April 2022, and an MRI of the lumbar spine dated 8 August 2022.
The Medical Assessor’s decision then ends with the following:
“DETERMINATIONS
[20] Treatment and Care - Causation Based on the evidence at hand, his lumbar spine condition was caused by the subject motor vehicle accident.
[21] Treatment and Care – reasonable and necessary The MRI lumbar spine requested is reasonable and necessary.
CONCLUSION
[22] The following treatment and care relates to the injuries caused by the motor accident:
• The MRI lumbar spine relates to the injury caused by the motor vehicle accident.
[23] The following treatment and care is reasonable and necessary in the circumstances:
• The MRI lumbar spine.”
Other assessments
Medical Assessor Assem examined the claimant on 1 March 2023 and issued his certificate in relation to “minor” injury on 6 March 2023.[2] He noted at [2] the injuries that he was asked to assess were:
(a) cervical spine injury - stress fracture. Numbness to neck and left upper limb;
(b) chest – soft tissue injury, left sided chest wall pain, reduced range of motion;
(c) left hip and left leg pain;
(d) left shoulder pain, reduced range of motion;
(e) left wrist pain upon movement and feeling of shock from wrist up to shoulder;
(f) lumbar spine injury - left paracentral disc bulge with an annular tear causing mild impression upon left L5 nerve root, and
(g) sacrum/coccyx injury - bilateral low grade sacroiliitis. Possible healing fracture, active bone lesion.
[2] While the MAI Act was amended to change the terminology from “minor injury” to “threshold injury” in Paril 2023, Medical Assessor Assem’s certificate was issued before that amendment took effect.
Medical Assessor Assem has a history of the accident at [10] and that the claimant had no recollection of the event. The claimant is reported to have contacted his doctor and was given Panadeine Forte for left sided chest and iliac crest pain. He returned to his doctor on 21 March 2022 with back and hip pain and on 23 March with neck and shoulder pain.
On examination the claimant was wearing a cervical collar and soft lumbosacral support.
After summarising the records and radiology, Medical Assessor Assem diagnosed and determined at [24]:
(a) the cervical spine injury was a minor injury. While acknowledging difficulties testing the claimant, he examined the radiology, and the bone scan indicated a cortical fracture of the hyoid bone which was non-minor;
(b) chest wall – soft tissue injury which had resolved;
(c) left hip – no evidence of injury that is non-minor;
(d) left shoulder – no evidence of fracture, complete or partial rupture of tenons, ligaments, menisci or cartilage and therefore soft tissue and minor injuries, and
(e) left wrist – the claimant had a previous wrist fracture and alleged a fresh injury, but it was not referred to in the general practitioner (GP) records and was not mentioned in the claim form and therefore he found there was no left wrist injury caused by the motor accident.
In relation to the lumbar spine, Medical Assem noted previous complaints of back pain not disclosed during the course of the examination and that a CT scan of 16 November 2021 showed a mild disc bulge but no other significant pathology. He noted lower back complaints were documented soon after the accident. The treating physiotherapist’s notes recorded ongoing back pain radiating into the right leg and on 4 August 2022 the claimant was limping. The Medical Assessor referred to a lumbar MRI of 8 August 2022 identified a left paracentral disc bulge with annular tear causing mild compression of the left L5 nerve root and minimal impingement of the left L4 nerve root. While he noted the claimant’s symptoms were right sided radicular symptoms and the MRI findings indicated nerve root compression and irritation in the left leg. Medical Assessor Assem found “on the balance of probabilities the annular tear … is more likely to be related to the subject accident”.
He therefore found at [28] that the lumbar spine injury (annular tear) was a non-minor injury.
Medical Assessor Nichols examined the claimant on 16 December 2022 and issued a certificate on 18 January 2023. He was asked to assess “multiple broken teeth and fillings, bleeding gums. Teeth 24, 25, 45, 12, 46 and 47, chipped and fillings broken”. He was asked to determine “minor injury” as well as treatment proposed by the claimant’s dentist,
Dr Makasrious on 11 October 2022.
The claimant admitted to Medical Assessor Nichols he had lost his upper molars and had a denture before the accident and did not regularly attend a dentist. He also said he was being treated for routine fillings at the time of the accident.
The claimant gave a history of hitting his face on the bonnet of the car that hit him, but the Medical Assessor notes none of the certificates of fitness or claim forms mention teeth. None of the contemporary dental notes mentioned the car accident or fractures and he did not mention the car accident to his dentists until May.
Medical Assessor Nichols found none of the dental injuries caused by the accident and none of the treatment was allowed.
Medical Assessor Roberts undertook an assessment of the claimant’s alleged psychological injury issuing a certificate on 28 September 2023. The Medical Assessor found a “chronic adjustment disorder with mixed anxiety and depressed mood” which was a “threshold” injury for the purposes of the Act.
PROCEDURAL MATTERS
Insurer’s submissions
The insurer’s submissions attached to the application form were dated 24 April 2024. The crux of the submissions is found at [3.4] where the insurer submits the Medical Assessor failed to disclose his methodology or path of reasoning and at [3.5] failed to explain how he took the material provided to him into account during the assessment.
The insurer says the Medical Assessor did not engage with and did not consider the pre and post-accident radiology and in particular lumbar radiology from 2021. The insurer says that it had approved a lumbar MRI on 3 August 2022 and was of the view no further radiology of the lumbar spine was required. The insurer says the Medical Assessor did not engage with the arguments raised in the submissions lodged in reply to the claimant’s application.
The Panel’s first directions
On 8 July 2024 the Panel issued directions to the parties. The parties were asked to confirm whether it was agreed that the claimant has a threshold injury and if so, which injury was the non-threshold injury. The Panel also asked whether there were any current review proceedings on foot in relation to issue of threshold injury.
Directions were issued for a bundle of documents from each party. The insurer was to upload its bundle by 26 July 2024 and the claimant by 9 August 2024.
The insurer’s responses
On 23 July 2024 the insurer provided a bundle of documents comprising 293 pages. Included in that bundle were further submissions. The insurer confirmed that “based on the decision of Medical Assessor Assem, the insurer concedes that the claimant sustained more than a threshold physical injury [in the accident], namely an annular tear to his lumbar spine”.
Within the insurer’s bundle there was an MRI of the claimant’s lumbar spine dated
8 June 2023[3] undertaken at the request of Dr Farbodmanesh. Other documentation in the bundle establishes that Dr Farbodmanesh is a pain physician who has been providing treatment to the claimant in consultation with Dr Malek, the claimant’s GP.
[3] Page 273 of the bundle.
The Panel’s further directions
On 9 September 2024, the Panel issued further directions to the parties.
The Panel referred to the chronology of the dispute and the 8 June 2023 MRI and said:
“As the claimant has now had an MRI of his lumbar spine, the Panel queries whether the dispute that is the subject of the current review is now redundant particularly if the insurer has paid for that MRI.
There would, therefore, appear to be no need for the Panel to determine if the claimant needs the MRI requested in November 2022 if he has had the MRI in June 2023.”
The insurer was asked to advise whether it had paid for the June 2023 MRI and if so to consider whether a notice of discontinuance should be filed in respect of the Review proceedings.
If the insurer has paid for the June 2023 MRI, the claimant was asked to agree that the request (which must have been made to the insurer by the claimant) for the MRI done in June 2023 supplants or supersedes the request for the MRI from November 2022.
The Parties’ responses
The insurer responded as follows:
“1. The Insurer confirms [the Panel’s chronology].
2. The insurer confirms that the claimant underwent a scan in June 2023 as at page 273 of the insurer’s bundle. This was funded by the insurer but was approved together with a cervical spine scan. The insurer previously confirmed same and provided documentation in respect of that.
3. The insurer acknowledges the panel’s query as to whether these proceedings are redundant given that the MRI approved and funded supersedes the treatment request Assessor Nair was allocated to consider, however submits that there is a reasonable suspicion of material error in that assessment that must be rectified. There are issues of causation and consistency that needs to be addressed for the future of medical proceedings and for the common law claim.
4. Further, the Insurer rejected the claimant’s treatment request made in November 2022 because a scan had been undertaken on 8 August 2022. The superseding request was not approved or undertaken for almost one year after that scan was done in June 2023 and so the decision that a repeat scan was not reasonable or necessary in November 2022 remains.”
The claimant responded saying:
“The Claimant's solicitors agree with Assessor Nair's determination dated 5 April 2024 that the MRI Lumbar spine was reasonable and necessary. … the Claimant's solicitors submits that the issue at hand relates to treatment that has already been approved and thus referral to the Review Panel is a waste of the PIC's resources.”
CONSIDERATION OF THE ISSUES
How should the Review Proceed?
The Panel notes there is no agreement from the parties as to whether the Review should proceed and if so, how the Review should proceed.
The Panel notes that the insurer argues the Review should proceed because there is an error that should be corrected and because, “there are issues of causation and consistency that needs to be addressed for the future of medical proceedings and for the common law claim”. The Panel is of the view that could be considered an improper purpose for pursing the Review and grounds for recommending the dismissal of the proceedings under s 54 of the Personal Injury Commission Act 2020 (the PIC Act). [4]
[4] See for example, QBE Insurance (Australia) Limited v Smith [2024] NSWPICMP 88 (30 January 2024)
The insurer also suggests that the request made by the claimant in November 2022 for an MRI “remains” on foot. Presumably the insurer is suggesting that the claimant could resurrect this request in the future and rely on the decision of Medical Assessor Nair if it was left uncorrected by this Panel.
The Panel appreciates the insurer’s argument and notes the claimant’s response does not address these concerns. The Panel has therefore determined to proceed with the Review.
In accordance with the guiding principle of the Commission as set out in s 42 of the PIC Act, the Panel is of the view that it would be in the interests of the just, quick and cost-effective resolution of the current proceedings for the Review to proceed on the papers. The Panel does not believe a medical examination of the claimant will assist in the resolution of the proceedings and the Panel does not require any additional documentation or information in order to conduct the assessment.
What is the treatment in dispute?
The MRI of the lumbar spine that was performed on 8 June 2023 was done at the request of Dr Farbodmanesh and also included the cervical spine.
The treatment in dispute is a lumbar spine MRI. While the treatment was requested by
Dr Malek on 11 November 2022, no lumbar spine MRI has been done in accordance with that particular request.
Is that treatment related to an injury caused by the accident?
There is a history in the GP notes of lower back problems before the accident. For example, in the Dellwood Medical Centre notes is an entry of 17 January 2013 which notes, “chronic low back pain” and an X-ray of the lumbar spine was requested. In the Restwell Medical Centre notes, on 4 May 2018, Dr Al Azzi records “has left lower back pain going to legs.” On 2 November 2021 Dr Malek has a history of spinal pain, and a CT scan was arranged of the lumbar spine and the claimant was prescribed Endone and Temazepan.
The claimant gave Medical Assessor Nair a history of no previous back pain, and a history of back pain after the accident radiating to his left leg.
The claimant denied to Medical Assessor Assem any previous back injuries and gave a history of back pain and trouble walking after the accident.
Medical Assessor Assem found that the claimant had injured his lower back in the accident and that the nature of the injury was a non-minor (now non-threshold) injury. The insurer has advised that it accepts this decision and concedes the claimant has a non-threshold lumbar spine injury.
An MRI of an area of the body agreed by the insurer as injured in the accident, is in the view of the medical members of the Panel, related to that injury. This is particularly so when there is a pre-accident history of symptoms in the same area and in order for the treating medical practitioners to identify any progression of the pre-existing condition.
It is also relevant that the clinical history provided by Dr Malek to the radiologist that performed the MRI in August 2022 noted “urgent. Cauda equina lesion?” A cauda equina syndrome is serious and can result in mobility issues, bladder, bowel and sexual dysfunction. If Dr Malek suspected a cauda equina lesion in August 2022, a further scan in November 2022 would, in the view of the Medical Assessors, likely be related to the monitoring of any progression of the disc bulges and nerve root irritation in the light of the previously reported symptoms.
The Panel is therefore of the view that the lumbar spine MRI requested by Dr Malek on
11 November 2022 is treatment related to the injuries resulting from the accident.
Is that treatment reasonable and necessary in the circumstances?
The claimant had lumbar spine radiology in November 2021 before the accident showing mild disc bulges and degenerative changes throughout the lumbar spine. The claimant had an MRI on 8 August 2022 after the accident showing a disc bulge (with annular tear) which was impressing and impinging on L4 and L5 nerve roots.
The main finding of the June 2023 scan was an annular tear, “eccentric to the left at the L4/5 intervertebral disc level”. There was a minor disc bulge seen at L1/2. It was reported that there was “possible mild irritation of the descending left L5 nerve root adjacent to the site of L4/5 annular tear but no significant or convincing nerve root irritation elsewhere”.
The MRIs of 8 August 2022 and 8 June 2023 report similar findings. The Panel has been advised that the 8 June 2023 scan was paid for by the insurer and understands that the 8 August 2022 was also paid for by the insurer. It is the Panel’s view that both were reasonable and necessary in the circumstances. The 8 June 2023 scan was reasonable and necessary in the circumstances because it was requested by a different doctor (a specialist) it was undertaken 10 months after the previous MRI and in the context of continuing symptoms of radiating pain.
A lumbar spine MRI in the future, performed in accordance with the referral and request made by Dr Malek on 11 November 2022, is not reasonable and necessary in the circumstances in particular the circumstance of the radiological investigation now having been done and paid for by the insurer at the request of a different doctor. The Panel wishes to make it clear to the parties, we are not saying that no further MRI of the lumbar spine will ever be reasonable and necessary in the circumstances. The Panel is saying that no MRI performed in accordance with the now redundant referral of 11 November 2022 is reasonable and necessary.
CONCLUSION
Medical Assessor Nair examined the claimant on 15 March 2024 and issued his certificate on 5 April 2024. Both his examination and his assessment of the dispute occurred after the 8 June 2023 MRI was performed and paid for by Allianz. The Panel is of the view that one of the parties should have alerted the Commission or Medical Assessor Nair to the fact that the disputed MRI had been done and that the insurer had paid for it.
The Panel is of the view that at the time of Medical Assessor Nair’s assessment there was no dispute in existence between the parties about a lumbar spine MRI and he should not have been required to undertake the assessment.
The Panel therefore revokes his certificate and will issue a fresh certificate that reflects the findings of the Panel.
0
1
0