Allianz Australia Insurance Limited v Alonso
[2025] NSWPICMP 100
•19 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Alonso [2025] NSWPICMP 100 |
CLAIMANT: | David Alonso |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; treatment and care dispute; insured vehicle collided with the front off-side of the claimant’s vehicle; primary damage to the front corner and minor damage to the driver’s door; claimant was able to alight from his vehicle to exchange details with the other driver; claimant subsequently was taken by ambulance to Bankstown Hospital where he complained of neck and low back pain; claimant involved in previous motor accident in 2017 causing injuries to neck, back, and right shoulder; claimant involved as driver in a serious single-vehicle accident in 2021 causing further injury to neck and right shoulder; claimant’s treating spinal surgeon recommended cervical discectomy in 2023; insurer declined liability on basis of causation; Medical Assessor (MA) certified that the proposed surgery does relate to the accident and is reasonable and necessary; Review Panel satisfied that MRI scan performed soon after subject accident showed pathology not present in MRI scan of cervical spine performed around the time of the 2017 motor accident; Review Panel satisfied that claimant’s neck was unrelenting; Review Panel satisfied that subject accident is a contributing cause to the need for surgery as conservative treatment has failed to relieve cervical symptoms; Review Panel satisfied that proposed surgery is reasonable and necessary; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – CAUSATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 1. The Review Panel confirms the Certificate of Medical Assessor Alan Home dated CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 2. The Review Panel confirms the Certificate of Medical Assessor Alan Home dated |
·
STATEMENT OF REASONS
INTRODUCTION
On 12 August 2020, David Alonso (the claimant) was the seat-belted driver of a Mercedes 2-door Coupe travelling approximately 60kmph on the Hume Highway towards Bankstown, when the driver of the insured vehicle emerged from a side street on the claimant’s right and attempted to merge into the lane in which the claimant’s vehicle was travelling.
The insured vehicle collided with the front off-side of the claimant’s vehicle, with primary damage to the front corner and minor damage to the driver’s door. The claimant was able to alight from his vehicle to exchange details with the other driver. He subsequently was taken by ambulance to Bankstown Hospital where he complained of neck and low back pain. Although he recalls an aggravation of his pre-existing right shoulder complaint, this was not recorded in the hospital notes.
Following his discharge from hospital, the claimant attended his general practitioner (GP), complaining of neck pain, increased pain at the right shoulder and lower back pain. He was referred for assessment of his shoulder complaint. He underwent further MRI scans of the cervical spine and lumbar spine. In October 2020, he attended Dr Nair, neurosurgeon, for advice regarding his neck and back complaints.
The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
On 9 October 2023, the insurer declined liability for a C6/C7 anterior cervical discectomy fusion and bone grafting. That refusal was confirmed on 23 October 2023 upon internal review. The internal reviewer was not satisfied that the request for a C6/C7 anterior cervical discectomy fusion and bone grafting is reasonable and necessary treatment with respect to the subject injury, especially in circumstances where those injuries are considered to be soft tissue in nature. The internal reviewer did not specifically dispute that the proposed treatment did not relate to the injury resulting from the motor accident.
MEDICAL HISTORY
The claimant states that he had no problems until 2017 when he was involved in his first motor accident. On that occasion, he says that he was the driver of a vehicle that was stationary when struck from behind by a car which he estimated to be travelling at 20 kmph. His vehicle sustained rear-end damage. He complained of neck, back and right shoulder pain. He was referred for specialist assessment of his right shoulder condition. The claimant says that he returned to his normal duties as a supervisor at a building construction company a few months after the first accident and that he continued working without restrictions and ongoing treatment complaints for about 1.5 to 2 years prior to the subject motor accident.
The claimant was involved in a third motor accident on 20 March 2021 when he was the seat-belted driver of a utility vehicle travelling along the M1 in wet conditions. He lost control of the vehicle after it struck a puddle of water. His utility vehicle rolled multiple times before striking a barrier. He was able to alight from the vehicle unaided. He was transferred by ambulance to Royal North Shore Hospital where he remained as an inpatient for four days for investigation of complaints of increased neck pain and increased right shoulder pain.
ASSESSMENT UNDER REVIEW
There is a dispute between the parties about whether the request for surgery (cervical spine) involving a C6/C7 anterior cervical discectomy fusion and bone grafting, as requested by
Dr Anil Nair, relates to the injuries caused by the accident and is reasonable and necessary in the circumstances. The dispute arises under Schedule 2, s 2(b) of the Act.Medical Assessor Alan Home certified on 20 May 2024 as follows:
The following treatment and care:
· The surgery (Cervical Spine) Treatment Provider: Dr Anil Nair – C6/C7 Anterior Cervical Discectomy Fusion and Bone Grafting
DOES RELATE TO THE INJURY caused by the motor accident and IS REASONABLE AND NECESSARY in the circumstances.
Medical Assessor Home found that the claimant had continued to experience neck pain without recovery from the time of the subject accident. He observed that the claimant’s ongoing symptoms are well-documented in the report of Dr Dias on March 2021 which preceded the third motor accident (above). Medical Assessor Home found that the subject accident is a material cause of the requirement for treatment of the claimant’s neck condition, including the requirement for the proposed surgical treatment.
THE REVIEW
The insurer sought a review of Medical Assessor Home’s certificate on the basis that the assessment was incorrect, within the meaning s 7.26 of the Act, in a material respect. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer submitted that there is no specific diagnosis or comment on causation in Medical Assessor Home’s findings on material contribution. The insurer submitted that Medical Assessor Home did not adequately explain his path of reasoning in concluding that the subject accident was a material contribution to the need for treatment. The insurer asserted that the Medical Assessor had not considered, based on a reading of his certificate, and therefore not ruled out, whether the change in pathology was simply a continuation of pre-existing degenerative changes that followed the 2020 accident, and therefore that the 2020 accident (at most) would have caused only a temporary exacerbation. The insurer referred to the opinions expressed by Dr O’Sullivan, neurologist, that the changes across all radiological investigations were “no different to his previous accidents, and relate to his cervical and lumbar disc degeneration” and the pathology was not related to the accidents. The insurer finally submitted that Medical Assessor Home did not provide a path of reasoning that explains how he drew the conclusion that the surgery was reasonable and necessary.
The insurer’s review application was opposed by the claimant on various grounds. Briefly, the claimant disputed that Medical Assessor Home failed to give proper consideration to causation findings. It was submitted for the claimant that he had returned to work, prior to the subject accident, and that his condition had improved. It was submitted that those circumstances supported Medical Assessor Home’s conclusion that there was an aggravation to a pre-existing condition. The claimant submitted that Medical Assessor Home’s opinion that “the claimant has continued to experience neck pain without recovery from the time of the August 2020 accident” was crucial. It was submitted there is a clear link between the subject accident and a worsening of the claimant’s symptoms which failed to improve from the date of the accident. The claimant noted that Medical Assessor Home expressly referred to Dr O’Sullivan’s opinion in his reasons.
It was submitted that there is no evidentiary basis to support the insurer’s submission that the subject accident caused a “temporary exacerbation” and that Medical Assessor Home provided detailed and comprehensive reasons for his findings. It was submitted that, in circumstances where the claimant’s condition has not improved since the date of the subject accident, no argument can be made that an “alternative decision” was available on causation. As to the reasonable and necessary treatment issue, the claimant made the same submissions, in support of the proposition that the review application should be rejected.
President’s delegate Rachel Britliff issued a Determination of an Application for Review of a Medical Assessment on 24 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be there is reasonable cause to suspect that Medical Assessor Home did not address a clearly articulated argument from the insurer about causation of the claimant’s injuries. The President’s delegate found that Medical Assessor Home did not address the insurer’s submission that changes in medical imaging of the claimant’s cervical spine, between the motor accident which occurred on 10 July 2017 and the subject 2020 accident, were degenerative in nature and were not caused by the subject accident.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to reassess the treatment disputes that were referred to Medical Assessor Home, unless the parties otherwise agree.
OTHER ASSESSMENTS
Another Review Panel issued the following certificates on 23 February 2023:
“1. The following treatment and care:
·8 sessions of physiotherapy; and
·request by Dr Herald for subacromial and local injections
IS REASONABLE AND NECESSARY in the circumstances.
2. The following treatment and care:
·8 sessions of physiotherapy;
·request by Dr Herald for subacromial and local injections;
·right shoulder arthroscopic stabilisation, labral repair or reattachment decompression and ligament transfer, recommended by Dr Jonathan Herald;
·mattress request recommended by Dr Jonathan Herald; and
·request from Dr Herald for compound cream
RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT.
3. The following treatment and care:
·8 sessions of physiotherapy; and
·Request by Dr Herald for subacromial and local injections
WILL IMPROVE THE RECOVERY OF THE CLAIMANT.”
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
A1 Claimant’s submissions dated 16 November 2023 in reply to insurer’s review application (previously summarised).
A2 Application for Personal Injury Benefits dated 2 September 2020.
The claimant stated that the motor accident caused injuries to his neck, back, both shoulders, right arm and both knees.
A3 Certificate of Capacity dated 14 August 2020.
Diagnosis from MVA on 12 August 2020 was stated as follow:
1. Cervical spine – whiplash associated disorder grade? II/III
2. Right shoulder impingement syndrome
3. Lumbar spine – mechanical low back pain
4. Bilateral knees – patella femoral joint impact injury
Examination of the cervical spine showed pain on movement in most planes. The claimant was found to have unrestricted capacity for work.
A4 ED Discharge Referral from Bankstown – Lidcombe Hospital dated 12 August 2020.
The Emergency Department Discharge record referred to neck and low back pain with paraesthesia to both lower limbs posteriorly. There was no reported weakness or loss of sensation in the upper and lower limbs. A CT scan of the cervical spine dated 12 August 2020 showed no fracture with minor degeneration at C3/C4.
A5 Referral for low dose CT scan of lumbar spine dated 12 August 2020.
A6 Referral letter to Dr Jonathan Herald dated 14 August 2020 seeking orthopaedic advice.
A7 MRI scan of cervical spine report dated 15 October 2020.
This study showed a small annular fissure and disc protrusion at C6/C7 which had the potential to compress the C7 nerve roots. Reported severe multi-level degenerative changes throughout the cervical spine causing severe foraminal narrowing with a small annular fissure and disc protrusion demonstrated at C6/C7 possibly accounting for the patient’s symptoms.
A8 MRI scan of right shoulder report dated 14 October 2020.
This study showed a partial thickness insertional supraspinatus tear with no muscle belly atrophy.
A9 - A14 Allied Health Recovery requests (various dates).
A15 CTP Rehabilitation Plan from Balance Rehab dated 31 July 2023.
A16 Medical report of Dr Anil Nair, spinal surgeon, dated 10 October 2023.
1.Can you please outline the diagnosis for both?
Symptoms began following the motor vehicle accident on 12 August 2020 – the treatment has been proposed for the accident of that date.
2.The PIC decision dated 23 February 2023 advises a normal nerve conduction study and a lack of neurological symptoms, with diagnosis of a Grade II whiplash. Can you please comment on this and outline how a fusion would help David, given conservative management is the standard for a Grade II whiplash?
It is with deference that I disagree. A nerve conduction study does not diagnose extrinsic neural compression. The diagnosis is established clinically and corroborated by findings on cross-sectional medical imaging.
3.What outcomes are anticipated and how would the C6/C7 anterior cervical discectomy fusion and bone grafting helped David return to work/life pre-accident?
Improvement in upper extremity radicular pain is highly likely to improve work and social function.
4.What is the anticipated recovery period for David – with or without surgery?
Without surgery, he will likely have continual symptoms. Full recovery following an anterior cervical discectomy and fusion takes approximately four to six months.
A17 Medical report dated 5 March 2021 by Dr Uthum Dias, occupational physician, to State Law Group.
Dr Dias was qualified by the claimant’s solicitors. On examination, Dr Dias noted findings consistent with a right C6 radiculopathy based on a sluggish right-sided biceps reflex and reduced sensation. No other neurological signs were evident. Right shoulder examination showed tenderness over the anterior and lateral aspects of the right glenohumeral joint with reduced abduction, flexion, internal rotation and extension. There was full range of external rotation and abduction. The knees were normal on examination.Lumbar pain examination showed reduced sensation in the right and left S1 dermatomes and reduced straight leg raising. There were no other objective motor or sensory deficits.
Dr Dias diagnosed persistent aggravation of cervical spondylosis with a right C6 radiculopathy, secondary to an acute strain associated with a C6/C7 disc protrusion, S1 radiculopathies associated with a L5/S1 disc protrusion and right shoulder impingement, secondary to a partial thickness supraspinatus tendon tear. Injuries to the left shoulder and both knees had resolved.
Dr Dias opined that the claimant’s injuries to his neck, right shoulder and lumbar spine qualify as a non-threshold injuries in accordance with s 1.6 of the Act. With respect to the claimant’s cervical spine injury, Dr Dias said as follows:
·Mr Alonso has sustained a C6/C7 disc protrusion.
·Mr Alonso has loss of sensation to light touch, and sharp touch and loss of 2. Discrimination in the right C6 dermatome.
·Mr Alonso has a diminished right-sided biceps reflex.
·These findings correlate with the MRI scan of Mr Alonso’s cervical spine performed on 15 October 2020 which revealed compression of the C6 nerve roots.
Therefore, Mr Alonso’s cervical condition qualifies for a non-minor injury, and the examination reveals two or more clinical signs of radiculopathy, within the meaning of cl 5.8 to 5.10 of the Motor Accidents Guidelines.
A18 Report dated 16 June 2023 by Dr Ho Choong, neurologist and neurophysiologist, to Dr Khan.
“He has had MRI cervical spine on 31 May 2023. It reported degenerative changes with disc bulge and osteophyte complex at the C6/C7 level, which is flattening the anterior aspect of the thecal sac, reducing the AP diameter of the canal to 9mm, which causes mild canal stenosis. In addition, there is moderate – severe narrowing of the left exit foramen with displacement of the left C7 nerve root.
Given the MRI cervical spine findings and his constant complaints of neck pain, could you please consider referring him to a neurosurgeon for an opinion. He should also continue physiotherapy-guided neck exercises”.
A19 Report dated 19 May 2023 by Dr Ho Choong to Dr Khan.
This report relates to MRI right elbow and is of no relevance for present purposes.
A20 MRI scan of cervical spine reported on 31 May 2023 by Dr Mark Waterland (summarised above).
A21 MRI scan of right elbow reported on 8 May 2023 by Dr Frank Malara (see above).
A22 Report dated 27 September 2023 by Dr Anil Nair to Dr Khan.
“I performed a clinical and radiological assessment of Mr Alonso. He continues to have debilitating axial and trapezial and upper extremity radicular symptoms. The C6/C7 transforaminal corticosteroid injection helped significantly with right upper extremity pain but only for a few days. Unfortunately, he has significant right upper extremity pain. Having established the pain generator, the next gradation of treatment is anterior cervical surgery.”
A23 Request for surgery from Dr Anil Nair.
A24 Medical report of Dr Anil Nair dated 10 October 2023 (see above).
A25 Report dated 13 October 2023 by Dr Jonathan Herald to Dr Khan.
Dr Herald noted that the claimant was continuing to have neck pain and pain radiating predominantly to the right upper limb, also bilateral shoulder pain. There was tenderness over the cervical spine as well as restriction of motion in both shoulders. Dr Herald suggested proceeding with surgery on the right shoulder.
A26 Consent for medical surgical treatment – right shoulder (13 October 2023).
A27 Certificate of Capacity by Dr Khan dated 17 August 2023.
The diagnoses were the same as in previous certificates of capacity by Dr Khan. Neck pain radiating to right upper limb, right shoulder pain and low back pain radiating to bilateral lower limbs were noted to have been present prior to the 2020 accident.
A28 Report dated 3 May 2023 by Dr Herald to Dr Khan.
Dr Herald noted continuing neck and back pain, but the main problem is the right shoulder. Dr Herald noted features of biceps tendonitis and a SLAP lesion as well as a rotator cuff tear.
A29 Patient Care report from NSW Ambulance dated 12 August 2020.
The ambulance report recorded nausea, neck and back pain post-moderate speed motor accident.
A30 Medical report dated 26 October 2020 by Dr Jonathan Herald to Dr Khan.
“History
Thank you for referring David to see me in clinic today. As you know, he has had his imaging. He is continuing to have bilateral shoulder pain, neck pain and back pain.
Examination
On examination, he has tenderness over his cervical spine and a positive Spurling’s test to both upper limbs.
MRI scans of his cervical spine show C4/C5, C5/C6 and C6/C7 disc prolapse with right sided C5, bilateral C6 and left greater than right C7 nerve compression. MRI scans of his back show an L4/L5 disc prolapse and right-sided S1 nerve compression. MRI scans of his shoulders show a right-sided partial thickness rotator cuff tear with impingement syndrome and left-sided bursitis.
Plan
I have explained to David a lot of his impingement syndrome and bursitis in his shoulders are secondary to the problem in his neck. I have referred him to a neurosurgeon in regard to his neck and back. In regard to treatment for his neck, back and both shoulders, I have suggested physiotherapy and anti-inflammatory tablets. I will see him again after he has seen the neurosurgeon and depending on the results from conservative treatment, we may consider cortisone injections.”
A30 Ultrasound – guided right subacromial bursa injection report dated 29 March 2023 (not relevant).
A31 Medical report dated 30 October 2020 by Dr Nair to Dr Herald.
Impression
Lumbar disc prolapse with discogenic lower back pain with bilateral extremity radicular symptoms. Cervical disc herniations with right upper extremity radicular symptoms.
Management
I have discussed options including physiotherapy, corticosteroid injections plus or minus radio-frequency ablation or ultimately surgery. I have based the recommendation away from surgery at this point in time as I am hopeful that symptoms will be controlled not operatively. However, due to the significant cervical pathoanatomic, surgery may be required in the future. I have referred David for right C4/C5 and C5/C6 transforaminal corticosteroids injections.
Follow up
Approximately one month’s time.
He has had symptoms since a motor vehicle accident. He describes pain in the lumbosacral junction. The pain is in regard to the cervical spine. He has pain and sub axial cervical spine, radiating to the right upper extremity region. This symptom provoked to the greatest degree by overhead lifting.
In regard to the cervical spine that was restricted range of motion. He had two plus upper extremity hyporeflexia, however, no pathological upper extremity reflexes. There were clinical features of right cubital tunnel syndrome.
Medical Imaging
MRI lumbar spine revealed broad based disc herniation. MRI cervical spine revealed cervical disc herniations with foraminal narrowing.”
A32 MRI scan of lumbosacral spine report dated 13 October 2020 (not relevant).
A33 MRI scan of lumbar spine report dated 17 August 2017 (not relevant).
A34 MRI scan of right shoulder report dated 13 November 2017 (not relevant).
A35 MRI scan of left shoulder report dated 14 October 2020 (not relevant).
A36 Clinical notes from Replayhealth – various dates.
A37 Clinical notes from Dr Ho Choong – various dates.
A38 Clinical notes from Dr Anil Nair.
A letter dated 5 February 2021 from Dr Nail to Dr Herald state as follows:
“I have reviewed David over Telehealth. The corticosteroid injection helped to a degree, however, he remains troubled. I have suggested a repeat MRI.”
A39 Clinical notes from Dr Jonathan Herald – various dates.
A40 Clinical notes from Injurycare – various dates.
A41 Clinical notes from Royal North Shore Hospital.
The Review Panel issued a direction to the parties on 15 October 2024 as follows:
“The parties are to provide, within 21 working days, any submissions they wish to make in relation to the proposition that, but for the third motor accident, the claimant would not have required surgery to the cervical spine, as recommended by Dr Anil Nair, involving a C6/C7 anterior cervical discectomy fusion and bone grafting.”
The claimant provided no further submissions in response to that invitation.
The Review Panel notes the summation of medical evidence by the previous Review Panel relating to minor injury, treatment and care. None of that material was included in the claimant’s bundle of evidence in this review, except indirectly. As the Certificate and Reasons of that Review Panel are included in the claimant’s bundle, the Review Panel is satisfied that it can have regard to that summation.
The insurer relied upon the following material which the Review Panel has considered:
R1 Insurer’s application submissions dated 17 June 2024 (previously summarised).
R2 Decision of President’s delegate Rachel Britliff dated 24 July 2024 (see previously).
R3 Insurer’s reply submissions dated 11 December 2023.
The insurer’s solicitor firstly summarises the claimant’s submissions in the Treatment Dispute as follows:
(a)Dr Nair opined that the claimant’s symptoms began following the subject accident on 12 August 2020, therefore, the proposed treatment is attributable to the subject accident.
(b)Dr Nair disagrees with the PIC decision dated 23 February 2023 regarding the nerve conduction study and the lack of findings of neurological symptoms.
(c)The C6/C7 condition has significantly been aggravated by the trauma caused by the subject motor accident.
(d)The claimant had evidence of C6/C7 small posterior annular tear in his neck but was capable of working and performing all activities of daily living prior to the subject accident.
(e)The insurer has failed to investigate the causal link between the injury and the requested surgery, as well as whether there is a causal link between the right elbow symptoms and the proposed surgery.
(f)There are clinical signs in the claimant’s cervical spine injury which pertain to radiculopathy.
In response to the claimant’s treatment dispute submissions, the insurer submitted that the treatment requested is neither reasonable nor necessary in the circumstances and does not relate to an injury caused by the subject accident. It referenced the original decision and determination upon internal review declining the proposed treatment. Further submissions were made as follows:
“The insurer notes that the claimant suffered pre-existing symptoms in a prior motor vehicle accident on 10 July 2017. It refers to a MRI of the cervical spine dated 17 August 2017 which demonstrated multiple annular tears at the cervical spine and minor disc herniations (the Panel notes that the words “and minor disc herniations” do not appear in the report). It refers to Dr Herald’s report dated 2 August 2017 which noted neck and back pain radiating to both shoulders.
The insurer describes the circumstances of the subject accident and the subsequent accident on 20 March 2021 noting that the latter was more severe.
The insurer references the injuries reported by the claimant following the subject accident and notes Dr Herald’s diagnosis of whiplash injury to the cervical and lumbar spine. It references an X-ray of the cervical spine dated 12 October 2020 (to which the previous Review Panel referred) which found no abnormalities to the cervical spine. It references a MRI of the cervical spine performed on 15 October 2020 which found abnormalities at C6/C7 described as:
‘Small focal posterior central fissure and disc protrusion is indenting the anterior thecal sac containing the anterior cord. Prominent unconvertible and facet joint degenerative changes are causing severe foraminal narrowing worse on the left which has the potential to compress the C7 nerve roots.’
The insurer’s submissions then referenced medical evidence which post-dated the subsequent March 2021 motor accident.
It refers to the report dated 21 May 2021 by Dr Stan Levy, neurologist, to which the previous Review Panel referred. Dr Levy noted both prior motor accidents and recorded that the major problem following the 2020 motor accident was right shoulder pain. Dr Levy also recorded that, since the March 2021 accident, the claimant had experienced pain in his lower back and neck, particularly on the right side, and pain in the right shoulder. Neurological examination was then normal. The insurer refers to a report dated 19 September 2021 by Dr Levy which stated the claimant’s radicular pain symptoms were prominently in a C5/C6 distribution. The insurer notes Dr Levy’s assertion that the claimant’s symptoms, based on the MRI findings, could be due to cervical discogenic disease and foraminal stenosis with possible nerve root entrapment at C5/C6.
The insurer then references a report dated 21 October 2021 by Dr Dudley O’Sullivan, neurologist, and submits that Dr O’Sullivan affirmed that the claimant’s symptoms, demonstrated at the time of the report, were degenerative in nature.
The insurer references the certificate dated 22 July 2022 by Medical Assessor Cameron who found the claimant suffered a soft tissue injury to his neck, as a result of the subject accident, which he determined to be a minor injury.
The insurer refers to nerve conduction studies conducted on 30 January 2023, which showed mild ulnar sensory neuropathy, which Dr Choong opined could be managed .conservatively. The insurer refers to an EMG study dated 15 February 2023 the findings of which were within normal limits, and showed no electrophysiological evidence to suggest significant right sided cervical nerve root compression, nor ulnar radiculopathy.
The insurer refers to the previous Review Panel Certificate dated 23 February 2023 which diagnosed the claimant as follows:
‘Whiplash associated disorder Grade II (causing neck pain). WAD Grade III can be excluded due to a normal neurological examination and normal nerve conduction studies (in the documentation).’
Further, the Certificate asserted:
‘We accept there was a soft tissue injury to the cervical spine probably involving an aggravation of degenerative changes at C5/C6. We do not accept that there was traumatic injury to nerves or a complete or partial rapture of tendons, ligaments, menisci or cartilage’ and ‘there are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines.’
The insurer refers to a MRI of the cervical spine dated 31 May 2023 (see previously) which, in the insurer’s submission, shows similar results to the MRI performed on 15 October 2020, with the addition of endplate osteophytes. The insurer highlights that the updated MRI demonstrates there are significant degenerative changes at C6/C7.
The insurer refers to Dr Nair’s report dated 10 October 2023 which asserted that the claimant’s symptoms began following the subject accident on 12 August 2020 justifying the proposed treatment. The insurer submits that the evidence clearly indicates that the claimant’s symptoms in the cervical spine began prior to the subject accident. The insurer notes that Dr Nair disagreed with the recent nerve conduction studies. He opined that a diagnosis of neural compression is established which, the insurer notes, is inconsistent with the previous Review Panel’s findings that the claimant ‘did not have radiculopathy at the recent examination’ which was normal. The insurer submits that Dr Nair has not provided sufficient explanation as to why his neurological findings differ to the nerve conduction studies as well as the previous Review Panel’s findings. Further, the insurer submits that Dr Nair has not adequately provided reasoning as to why a fusion is required in the circumstances and why it is related to the subject accident rather than the 2021 accident.
The insurer refers to the claimant’s reliance upon recent nerve conduction studies which showed a nerve injury to the right elbow. The insurer submits that there is no medical evidence connecting that condition to the need for the proposed C6/C7 anterior cervical discectomy fusion and bone grafting. The insurer submits the medical evidence demonstrates that the claimant’s neurological symptoms only presented following his subsequent motor accident in March 2021.
The insurer finally submits that, having regard to the overwhelming preponderance of evidence, the proposed surgery is unreasonable and unnecessary and not causally related to the injury suffered in the subject accident.
R4 Medical certificate dated 19 July 2017.
R5 MRI of cervical spine dated 17 August 2017 reported by Dr Ron Shnier as follows:
The cerebellar tonsils end above the foramen magnum.
The signal and morphology of the cervical cord is normal.
At C2/C3 the disc is normal.
At C3/C4 there is a small anteroinferior annular tear.
At C4/C5 there is minor annular bulging.
At C5/C6 there is C6/C7 there is a small posterior annular tear.
At C7/T1 the disc is normal.
At no level is there canal narrowing. No discrete nerve root compressive lesion seen in the lateral recesses or exit foramina.
The bone marrow signal and paravertebral soft tissues outline normally.
Conclusion
Multiple annular tears
R6 Final report of CT cervical spine reported on 12 August 2020 by Dr Diana Tran.
Conclusion
Minor motion artefact in the lower cervical spine. Within this limitation, no acute fracture line is noted.
R7 X-ray cervical spine reported on 12 October 2020 by Dr Zane Sherif.
Findings
Normal cervical claudosis. No acute boney pathology. No prevertebral oedema. Neural foramina appear capacious.
R8 Report dated 21 October 2021 by Dr Dudley O’Sullivan, neurologist, to the insurer.
Dr O’Sullivan viewed a MRI of the cervical spine performed after the subject accident. He opined that the MRI revealed quite severe multi-level degenerative changes throughout the cervical spine. Nevertheless, Dr O’Sullivan noted that the claimant ‘had significant pathology with regards to his cervical spine as a consequence of the motor vehicle accident in 2020’. Dr O’Sullivan describes the circumstances of the subsequent motor accident on 20 March 2021 in detail. He viewed a MRI scan of the cervical spine performed after that accident. Dr O’Sullivan says that the MRI showed some mild degenerative changes but no clinical ligamentous injury or acute intervertebral disc injury. Dr O’Sullivan opines that the MRI scan of the cervical spine did not show any significant abnormality. Dr O’Sullivan stated that the subject accident caused aggravation of the claimant’s pre-existing cervical and lumbar spondylotic disease as well as his right shoulder arthritic changes.
Dr O’Sullivan found that, at the time of the March 2021 accident, the claimant was still experiencing symptoms in his neck and lower back which he was managing at home. He thought that the March 2021 accident caused further aggravation of the claimant’s previous cervical and lumbar spondylotic disease, but no neurological abnormality. As to whether the claimant’s symptoms related to the subject accident or the 2021 accident, Dr O’Sullivan opined as follows:
“His current symptoms are not related to the motor vehicle accident in 2021, but that accident would have aggravated his pre-existing cervical and lumbar spondylotic disease and, in my view, that aggravation would have ceased after a period of three months and his ongoing symptoms would relate to his pre-existing degenerative cervical and lumbar spondylotic disease. At present, his symptoms are not secondary to the motor vehicle accidents. His present symptoms, as far as I could ascertain, are no different to his previous accidents, and relate to his cervical and lumbar disc degeneration… I do not think the changes that we are seeing now are in any way different from the previous MRI changes in his cervical spine and lumbar spine that was seen following the accident in 2020.”
R9 NSW Police report dated 2 March 2022.
R10 Certificates of Capacity from 16 September 2020 to 23 September 2023.
R11 CT guided right side C6/C7 foraminal injection reported on 4 September 2023 by Dr Simon Dimmick to Dr Nair.
R12 Letter dated 9 October 2023 denying treatment.
R13 Clinical notes of Dr John Tawfik (various dates).
R14 Clinical notes of Brain Power Neurology (various dates).
R15 Clinical notes of Dr Naresh Verma (various dates).
In response to the Review Panel’s invitation, the insurer made supplementary review submissions on 4 November 2024, which can be summarised as follows:
(a) It firstly describes the circumstances of the subsequent 2021 motor accident (third accident) which are not controversial.
(b) The insurer then briefly summarised the claimant’s post 2021 motor accident medical history as follows:
(i)In a Certificate of Capacity by Dr Khan on 29 April 2021, the doctor diagnosed cervical spine mechanical pain with right upper limb radicular symptoms. The certificate also noted the claimant’s pre-existing history of “cervical spine, right shoulder, lumbar spine and bilateral knees injury.”
(ii)On the same day, the claimant was referred to Dr Stan Levy, neurologist, for “nerve conduction study from cervical spine bilateral upper limbs, bilateral lower limbs.”
(iii)The claimant was referred to Dr Choong on 20 May 2021, neurologist, for “suspected neck plus right brachial flexes injuries” in addition to “right cervical spine C5, C6 radiculopathy and fracture plexopathy.”
(iv)In a report dated 21 May 2021 by Dr Levy, the claimant reported that, following the third accident and since then, he has been experiencing “pain in his lower back and neck, particularly on the right side” with “the pain radiating down the outer aspect of his right arm and into the ring and small fingers of his right hand.”
(v)A MRI of the cervical spine conducted on 27 August 2021 demonstrated:
“At C6/C7, ….. there is a persistent mild stenosis with severe foraminal stenosis. At the remaining levels also, there has been no significant change, persisting degenerative changes and foraminal stenoses are again noted most marked at C5/C6, C4/C5 on the right and C3/C4 on the left.”
(vi)The insurer referred to Dr O’Sullivan’s report dated 21 October 2021 (see previously).
(vii)In a nerve conduction study performed on 30 January 2023 by Dr Choong, the findings demonstrated “clinical and electrophysiological evidence of mild right ulnar sensory neuropathy.”
(viii)A MRI of the cervical spine performed on 31 May 2023 revealed “C6/C7 is degenerative and narrowed with a disc bulge and endplate osteophytes.”
(ix)On 27 September 2023, the claimant’s treating spinal surgeon, Dr Anil Nair, noted the claimant’s ongoing “right upper extremity pain”. As a result, he recommended C6/C7 anterior cervical discectomy fusion and bone grafting.
(c) The insurer submits that, following the third accident, the claimant has continually complained of injuries, including to his neck, shoulder, lower back and hands, for which he has sought treatment. The insurer further submits that, based upon the available treating evidence, the claimant has suffered from more permanent radiculopathy in his neck following the third accident. (The Review Panel notes that this submission is contrary to the findings of the previous Review Panel that there was no evidence of any radiculopathy at any time).
(d) The insurer submits that, based on the available medical evidence, the claimant’s reported injuries to his neck, shoulder and back were caused by the third accident. Or, in the alternative, was (sic) substantially exacerbated by the 2021 accident. (The Review Panel does not understand that substantial exacerbation of the claimant’s injuries in the third accident is a matter in dispute).
(e) The insurer then compares the medical history prior to the subject accident, then from the date of the subject accident to the date of the third accident, all of which has been summarised previously.
(f) Whilst the insurer concedes it is unable to say what the trajectory of the claimant’s health condition would have been after the subject accident, the insurer submits that the third accident severely and permanently aggravated the pre-existing symptoms to the cervical spine, which resulted in Dr Nair’s recommendation for surgery on 27 September 2023.
(g) The insurer properly concedes that Dr Nair’s prior report dated 30 October 2020 had raised the possibility of cervical surgery, but he was then hopeful that conservative management with corticosteroid injections at C4/C5 and C5/C6 would control the claimant’s symptoms, specifically the right upper extremity issues.
(h) The insurer submits that, had it not been for the third accident, Dr Nair would not have recommended cervical spine surgery. (The Review Panel notes there is no evidence from Dr Nair, nor any other medical expert, to that effect).
(i) It is accordingly the insurer’s submission that the third accident was an independent, intervening act that precipitated the need for surgery and severed any causal link to the subject accident. The insurer submits that the claimant’s condition was irrevocably and undeniably worsened by the third accident based on the radiological evidence and the claimant’s increasing complaints.
(j) It finally is submitted by the insurer that the claimant’s pre-existing degenerative condition to his cervical spine was exacerbated by the third accident which resulted in the need for the recommended surgery. Had it not been for the third accident, the insurer submits that Dr Nair would not have requested the proposed surgery.
(k) The insurer references medical and other material most of which previously has been considered.
EXAMINATION REPORT
The report of Medical Assessor Shane Moloney is as follows:
“David Alonso
MVA 12 August 2020
Mr Alonso attended the medical suites at PIC on 2 December 2024. He was unaccompanied.
Pre-accident history
Mr Alonso was involved in a previous motor accident in July 2017. At that time, he was a driver of his car when hit from the rear while stationary. He states that he injured his neck, back, thoracic spine and right shoulder in the accident. He was treated with physiotherapy and referred to Dr Herald, an orthopaedic surgeon who consulted him in August 2017 for his right shoulder condition. No surgical procedure was undertaken.
Mr Alonso stated that he was working as a construction supervisor full-time as well as running his own company in property development for one year prior to the accident.
He is married and lives with his wife and 2 children aged 5 and 2.
History of motor accident
Mr Alonso states that he was driving his car when another vehicle failed to give way and collided with the front driver side of his car on the Hume Highway. He was wearing a seatbelt at the time and states that he had pain in the neck, low back and right shoulder region. He was taken by ambulance to Bankstown Hospital where scans were taken of his chest and neck.
History of subsequent treatment
Mr Alonso consulted his GP, Dr Khan who referred him for further physiotherapy and prescribed analgesics. He again was referred to Dr Herald for right shoulder pain and was referred for an MRI which was delayed due to his anxiety in the machine. He was also referred to Dr Nair, neurosurgeon for neck and back complaints. Dr Nair organised cervical cortisone injections which gave temporary relief.
Due to persistent right shoulder pain, Dr Herald did an arthroscopic repair of his rotator cuff. Mr Alonso states that despite this procedure he has persistent pain and weakness in the right shoulder.
Dr Nair had been booked to do a ACDF surgery at C6/7 in September 2024 which was cancelled and Mr Alonso is hoping to have this procedure in the New Year.
History of subsequent injuries
Mr Alonso was involved in a further motor vehicle accident on 20 March 2021. In this accident, he was a seat belted driver on the M1 motorway in wet conditions when he lost control causing his car to roll over several times before striking a barrier. He was able to get out of the car but was admitted to Royal North Shore Hospital for 4 days due to increased neck and right shoulder pain.
Dr Khan, his treating GP referred him to a neurologist, Dr Levy. He was also referred to Dr Choong, another neurologist who undertook further MRI scans of the cervical spine and organised further cortisone injections at the C6 level which gave relief for a few days. Dr Choong noted on his conduction studies that there was mild right ulnar sensory neuropathy.
Current symptoms
At present, Mr Alonso has tightness in both trapezius muscles with a sharp pain in the right side of his neck which increases with any pressure over the lateral cervical spine region and points to the scalene muscles. He gets variable numbness in the 4th and 5th right fingers. This happens to a lesser extent on the left side which is infrequent. There is some radiation of pain into the interscapular region.
Prolonged standing increases neck pain and he is more comfortable with the knee flexed and better able to sleep on his back. He drives short distances and can walk for 15 to 20 minutes before pain increases in the lumbar region.
At present he is unemployed and his wife does the paperwork on his own company.
Current treatment
Present medication is duloxetine EC 30 – 60, mirtazapine 15 mg at night, risperidone 3 mg once a day. He also takes Panadol, Voltaren 25 mg and Voltaren gel, Mobic 15 mg One-A-Day when needed, Nurofen occasionally and Celebrex 200 mg when needed. He continues to have physiotherapy.
No radiological studies were available for inspection.
Clinical examination
Mr Alonso walked into the rooms with a normal gait and stated that he is left-handed. His height was measured at 170 cm and weight 77 kg.
Cervical spine
On palpation there was tenderness over the C6 – 8 spines and in particular the right scalene muscles. There was no tenderness over the sternocleidomastoid muscles and some tightness in both trapezius muscles with some guarding. On testing range of movement, flexion was 80% of expected range and extension 25% of expected range and rotation were 75% of expected range bilaterally and side bending was 50% of expected range the right with some radiation of pain down the right arm. Similarly, the range of side bending to the left was 50% of expected range with pain radiating down the left arm.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power and no muscle wasting was noted. The circumference of the upper arms 31 cm on the right and 31.5 cm on the left (10 cm above the olecranon process) and in the upper arms 28 cm bilaterally (5 cm below the olecranon process). Sensory changes were noted to light touch over the 4th and 5th fingers with poor discrimination to sharp and blunt testing over the right anterior and lateral forearm and in a global distribution in the right upper arm.
Shoulders
On palpation there was tenderness over the right anterior shoulder but no crepitus was noted on passive movement. Active movements were measured using a goniometer and repeated. There was an improvement in range of movement since the May 2024 assessment by assessor Home but it is now over 1 year since the right shoulder surgery.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
140°
180°
Extension
50°
60°
Adduction
40°
50°
Abduction
140°
180°
Internal Rotation
80°
90°
External Rotation
80°
90°
Discussion
Mr Alonso told me that his cervical lumbar spine injuries from the 2017 accident had recovered in 2020. Dr Khan’s consultation notes recorded ongoing pain in these regions.
Mr Alonso stated to me that the insurance company covering the 2020 accident was trying to place his main cervical spine injury on the 3rd accident. He gave an opinion that as this was a one car accident, he wouldn’t be covered for any surgery due to that accident. Mr Alonso became a bit agitated when stating this. He insists that the main complaint is due to the August 2020 accident.
Dr Herald, an orthopaedic surgeon had consulted Mr Alonso in August 2017 after the first accident when he reported ongoing neck and back pain radiating to the shoulders with mild tenderness on palpation and stiffness. A follow-up consultation on
31 August 2020 after the 2nd accident he reported neck back and bilateral shoulder pain. At the time of his examination, he recorded muscle spasm with bony tenderness of the cervical spine which had limited extension and non-verifiable radicular complaints radiating to both shoulders in both upper limbs with limited shoulder movement and positive impingement signs. He again diagnosed whiplash injuries to the cervical and lumbar spine.Dr Levy, neurologist wrote a report on 21 May 2021 after the 3rd accident and recorded in his history taking that the MVA in 2017 cause cervical lumbar and right shoulder injuries which were exacerbated in August 2020 MVA. He then reported that Mr Alonso experienced cervical and lumbar backache since the 3rd accident which might have exacerbated prior injuries to these areas with increased pain radiating down the right upper limb.
The treating GP in his certificate of capacity on 29 March 2021 recorded a high-speed multiple rollover accident on 20 March 2021 occasioning cervical spine mechanical pain with right upper limb radicular symptoms.
An MRI of the cervical spine dated 27 August 2021 recorded no significant changes in comparison to the previous MRI in 2020.”
DOES THE PROPOSED TEAR RELATE TO THE INJURY RESULTING FROM THE MOTOR ACCIDENT?
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of permanent impairment resulting from injury under the worker’s compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[6] These principles are well-settled and equally apply to the causal relationship of treatment under the Act by reasons of the same statutory language.
[6] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Philips.[7] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear that s 58(1) of the Motor Accidents Compensation Act1999. Those words are almost identical to the wording in Schedule 2 of the Act.
[7] [2018] NSWSC 1710 at (29).
REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
The claimant is required to establish that the care is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the care is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the care is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act1987 in Clampett v WorkCover Authority of NSW,[8] Grove J stated:[9]
“22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ as relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ – (shorter Oxford English Dictionary, 3rd Edition) and ‘that cannot be dispensed with’ – Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what may be ‘reasonably necessary’, there is these statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[8] [2003] NSWCA 52.
[9] Clampett at (22) – (23), Meagher and Santow JJA agreeing.
Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[10]
[10] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).
Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[11] They include:
(a)the appropriateness of particular treatments;
(b)the availability of alternative treatments;
(c)the costs of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[11] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88).
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
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 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”.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[12] The Review Panel adopts the examination findings and reasons of Medical Assessor Shane Moloney with which Senior Medical Assessor Drew Dixon concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[13]
[12] Section 7.26(6) of the Act.
[13] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel notes the MRI scan of the cervical spine dated 15 October 2020 (A7) showed a small annular fissure and disc protrusion at C6/C7 which had the potential to compress the C7 nerve roots and possibly accounted for the patient’s symptoms. That scan was performed only two months after the subject accident. Those were new findings that did not appear in the MRI scan of the cervical spine dated 17 August 2017 (R5). The Medical Assessors respectfully disagree with Dr O’Sullivan as to the significance of those findings.
The Review Panel is satisfied that, whilst the evidence does not establish the presence of radiculopathy at any time following the subject accident, the claimant’s neck was unrelating.
The Review Panel is satisfied, as a matter of medical determination and as a matter of factual non-medical determination, that the proposed cervical spine surgery does relate to the injury caused by the motor accident. Whilst recognising that the third motor accident was more severe than the subject accident, the Review Panel accepts that the second accident was a contributing cause, more than negligible, to the claimant’s need for cervical spine surgery.
The Review Panel also accepts that the C6/C7 Anterior Cervical Discectomy Fusion and Bone Grafting, proposed by Dr Anil Nair, is reasonable and necessary in the circumstances given that conservative treatment failed to relieve the claimant’s cervical symptoms.
In reaching their medical determination, the Medical Assessors have had regard to standard medical practice and exercised the entire gamut of their clinical experience and judgment.
CONCLUSION
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor Alan Home on 20 May 2024 should be confirmed.
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