Allianz Australia Insurance Limited v Denmeade

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Denmeade [2025] NSWPICMP 169
CLAIMANT:	Mark Denmeade
INSURER:	Allianz Australia Insurance Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	17 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 1 June 2022; Medical Assessor (MA) determined the claimant’s disputed treatment, anterior cervical discectomy, and fusion at C4/5 and C5/6 was related to the injuries caused by the accident and was reasonable and necessary in the circumstances; dispute about treatment; Held – Review Panel conducted its own examination and concluded that the treatment in dispute was caused by the accident; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel confirms the Certificate of Medical Assessor Alexander Woo, dated 25 June 2024, that the following treatment and care: · the anterior cervical discectomy and fusion at C4/5 and C5/6 as proposed by treating neurosurgeon, Dr Raj Reddy dated 14 December 2023, relates to the injury caused by the motor accident AND is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

BACKGROUND

The claimant, Mark Denmeade (Mr Denmeade), was injured in a motor vehicle accident (the accident) on 1 June 2022.
The insurer, Allianz Australia Insurance Ltd (Allianz), insured the owner and driver of other vehicle for liability to pay Mr Denmeade any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute are whether an anterior cervical discectomy and fusion at C4/5 and C5/6 were reasonable and necessary in the circumstances, caused by the accident and whether the treatment will improve the recovery of the injured person.
Allianz has denied the request for approval of the surgery on the ground that it was not reasonable and necessary in the circumstances.
Section 7.17 of the MAI Act defines a “medical dispute” to include a dispute between the parties about a medical assessment matter.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including 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” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the dispute is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
The disputes were referred to Medical Assessor Alexander Woo who issued a medical assessment certificate dated 25 June 2024. Medical Assessor Woo concluded that the anterior cervical discectomy and fusion at C4/5 and C5/6 as proposed by treating neurosurgeon Dr Raj Reddy relates to the injury caused by the accident and is reasonable and necessary in the circumstances.

The Review

The President’s delegate referred the determination of Medical Assessor Alexander Woo to a review panel (the Panel) as the delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel issued a direction to the parties requesting the provision of Documents.

STATUTORY PROVISIONS

Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
...
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 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.
That conclusion is consistent with Schedule 2 of the MAI Act that defines a medical assessment matter as “whether any treatment and care 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)” (emphasis added).
Clause 2 (b) of Schedule 2 of the MAI Act was amended with the inclusion of the words “or to be provided” were inserted into the provision. The amendment followed a previous Commission decision rejecting the power under the MAI Act to determine a claim for future treatment.
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(1) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
The relevant Motor Accident Guidelines 2017 (the Guidelines) giving effect to when payments may be authorised after the six- month period pursuant to s 3.28 of the MAI Act are contained in cl 5.16. Clause 5.16 of the Guidelines contains the reference to “recovery” in the context of treatment of care after a period of 26 weeks. Further defined expenses are recoverable after 26 weeks, even though the injuries are only minor injuries, if one of three conditions apply. One of those conditions is that the “treatment and care will improve the recovery off the injured person”. The clause provides:
“5.16 For a person whose only injuries are minor injuries, the payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is:
(a) medical treatment, including pharmaceuticals
(b) dental treatment
(c) rehabilitation
(d) aids and appliances
(e) education and vocational training
(f) home and transport modifications
(g) workplace and educational facility modifications
and:
(h) the treatment and care will improve the recovery of the injured person, or
(i) the insurer delayed approval for the treatment and care expenses, or
(j) the treatment and care will improve the injured person’s capacity to return to work and/or usual activities.”
Clauses 4.76 - 4.77 of the Guidelines provides:
“4.76 People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant, providing support based on best practice and tailored to their individual circumstances and needs.
4.77 The insurer should apply the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services, which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:
(a)measure and demonstrate the effectiveness of the treatment
(b)adopt a biopsychosocial approach – consider the whole person and their individual circumstances
(c)empower the injured person to manage their recovery
(d)implement goals focused on optimising function, participation and where applicable, return to work
(e)base treatment on the best available research evidence.”

SUBMISSIONS

Submissions of the insurer dated 29 February 2024

I refer to Allianz’s submissions by reference to paragraph numbers:
Overview
[1]Mr Denmeade was born in June 1980 and was working as a gym manager at the date of accident.
[2]He was the seat belted driver of a motor vehicle when the insured entered into an intersection across his path of travel. Mr Denmeade collided with the side of the insured’s vehicle. He alleges soft tissue injuries to the neck with referred symptoms into the right upper limb to the hand.
[3]Mr Denmeade’s treating neurosurgeon, Dr Reddy has now proposed an anterior cervical discectomy and fusion at C4/5 and C5/6.
[4]It is the insurer’s contention that such surgery is not reasonable or necessary by reference to Mr Denmeade’s post-accident complaints and treatment history in addition to the objective findings of Dr Reddy at the time the surgery was recommended.
[5]The insurer makes the following submissions with respect to the treatment request:
Anterior Cervical Discectomy and Fusion at C4/5 and C5/6
[6]Mr Denmeade cites the objects of the MAI Act with respect to the encouragement of early and appropriate care to achieve the optimal recovery of persons injured in motor vehicle accidents.
[7]Mr Denmeade’s lawyers go on to assert that the insurer has made an incorrect determination in declining to approve the surgery.
[8]In an unexplained submission Mr Denmeade seeks to conflate the insurer’s duty to resolve a claim justly and expeditiously with its determination to decline surgery.
[9]With respect the submission is misconceived.
[10]What Mr Denmeade’s submissions fail to recognise is the reasonableness and necessity of treatment that is proposed to be undertaken and specifically the type of treatment request made in the present.
[11]Mr Denmeade seeks approval for an anterior cervical discectomy and fusion of the cervical spine.
[12]It is trite to observe that cervical fusion is a highly invasive and significant form of treatment with potentially significant long term consequences.
[13]The type of treatment proposed is treatment that should not be entered into lightly.
[14]Dr Reddy has proposed the surgery on the basis of his examination and assessment of Mr Denmeade. The insurer submits the observations recorded by doctor following his examination when seen against his post-accident treatment and recovery are such that his current symptoms are not sufficiently severe or of a type that warrant the undertaking of such invasive surgery.
[15]The insurer concedes that the medical evidence relied upon by the parties does not identify any pre-accident complaints of neck pain.
[16]There are however complaints of pain with respect to disc disease at L4/5 and L5/S1, but which are not of any relevance to the present.
[17]The records of Dr Khan relied upon in the application do not include Mr Denmeade’s initial attendance on 1 June 2022.
[18]The insurer refers the assessor to the clinical records of Dr Khan appearing at R2.
[19]The assessor will see Mr Denmeade presented on 1 June 2022 giving a history of his involvement in the subject accident and consequent neck pain. Significantly, at the time of the initial consultation he described no pain into the arms or legs. The diagnosis at the time was a whiplash injury.
[20]Mr Denmeade then presented on 19 July 2022 at which time there was a complaint of pain extending into the right upper limb with tingling and numbness.
[21]As part of his treatment he was referred to other specialists including Dr Ghahreman, Dr David Maxwell, a Dr Richardon, Professor Mark Davies, Dr Samara and, ultimately, Dr Reddy.
[22]It does not appear that Mr Denmeade took up the referrals to Dr Ghahreman, Dr Davis or Dr Richardon.
[23]He was referred for a series of investigations.
[24]MRI of cervical spine performed 13 June 2022 on a history of referred symptoms into the right arm and wrist following a motor vehicle accident revealed disc and endplate of osteophyte and facet disease resulting in central canal and foraminal narrowing. An MRI of the cervical spine performed 30 June 2022 revealed little change in the pathology beyond that which was previously reported. The most notable was a foraminal disc protrusion at C4/5 on the right causing severe foraminal stenosis.
[25]An MRI of the brachial plexus performed 20 September 2022 revealed no significant brachial plexus injury.
[26]An MRI of the cervical spine performed 7 August 2023 noted that since the August 2022 scan there appeared to have been a right C4-5 laminoforaminotomy consistent with the surgery performed in December 2022. Additionally, there appeared significant foraminal stenosis at that level with potential irritation of the C5 nerve root. Otherwise there had been no change in the appearances from the earlier scan.
[27]A repeat CT of the cervical spine performed 27 October 2023 revealed no disc prolapse. Degenerative changes were noted at C4/5 and C5/6 with foraminal narrowing.
[28]A whole body bone scan with SPECT was performed 27 November 2023. This did not reveal evidence of recent fracture. Uptake was consistent with degenerative changes involving the C4-5 vertebral bodies endplates and T7-8 facet joints bilaterally and the left eighth costovertebral joint.
[29]Mr Denmeade attended Dr Reddy who reported on 27 November 2023. Following his examination doctor noted there was normal power in all muscle groups of both upper limbs. There was said to be limitation of range of cervical movements. Doctor noted a history of the surgery performed in December 2022 by Dr Parkinson.
[30]Significantly, doctor noted the following history:
‘His radicular symptoms settled, however he has constant, persistent pain in the neck with limitation of movement following the surgery.’
[31]Doctor’s report does not identify any other specific neurological or other deficit or abnormality on examination which, it is respectfully submitted, would be expected to be found when consideration was being given to requesting approval for invasive spinal surgery.
[32]It is the insurer’s contention that given the absence of radicular symptoms or other objective findings, the proposed cervical discectomy and fusion is not reasonable or necessary.
[33]The insurer refers the assessor to the clinical records of Active RX Physiotherapy appearing at A32 of the application (page 210).
[34]The insurer provides the assessor with the following summary of those clinical records. The summary below is intended as an aid only and it is not intended to be a replication of the entirety of the clinical entries. The assessor is directed to the relevant clinical entries where required.
[35]The insurer notes the following entries of Active RX Physiotherapy:
(a)    8 February 2023…First surgery 6; second surgery 18; Dr Parkinson St Vincent’s. Feels like he has lost rotations to the left. Nerve pain still; this remains unchanged compared to pre-surgery…
(b)    20 February 2023…Bit sore from releases the next day but overall slightly improved…
(c)    21 February 2023…Nil major change in symptoms…
(d)    27 February 2023…Exercises are going well…
(e)    2 April 2023…Has been off work with neck pain so unable to come to appointments. Has been struggling to sleep…
(f)    7 April 2023…Has been really struggling to sleep. Turning to the right feels it in the throat. Does not feel like he can progress due to pain…
(g)    9 March 2023…Felt really sore post-treatment…has been really struggling to sleep…turning to the right feels it in the throat…
(h)    16 March 2023…Had to have more days off work. Sleep struggling is continuing…irritated the neck turning the head to the left sharply by accident. Feels the releases is the only thing giving him relief. Doesn’t want to drop to once a week…
(i)    23 March 2023…Felt really good and had good sleep for the first time in ages…
(j)    28 March 2023…Still feeling better – feels ready to start the symmetric strengthening again…
(k)    30 March 2023…Had to miss an appointment as daughter had COVID. Is fairly good, walking most days without need to rest…
(l)    11 April 2023…Bit sore last week – had to have some time off work…
(m)     20 April 2023…GP upped pain meds and sleeping tablets - has been a bit sore…
(n)    27 April 2023…Pain specialist → next Thursday or Friday. Feeling pretty good and wants to start light band work…
(o)    9 May 2023…New pain meds…feels under control but hesitates doing too much.
(p)    23 May 2023…Feeling okay but feels like he is on a lot of pain meds…
(q)    30 May 2023…Started running – feels a bit stiff but feels a bit better overall for increasing exercise…
(r)    1 June 2023…Tuesday → driving, turned really fast and irritated…run; 100 metre run then walked 100 metres → 8 laps.
(s)    6 June 2023…Feeling better overall – feels like last couple of days – weeks have been good. Able to play touch – nil effects after. Able to go for a run – 100 metres → 850 metres. Just tight in shoulders after…
(t)    11 June 2023…Overall feeling better. Trying to reduce pain medications…
(u)    27 June 2023…Had a bad week and had to cancel and miss work. Saw a psychiatrist…was told he has a case of PTSD → wasn’t expected…thinks pain is associated with the PTSD. Pain no difference to last week → just sleeping better…running with little one, but had to have week off checking blind spot in car…
(v)    29 June 2023…Overall is feeling similar, no better, no worse. Happy to be doing some light exercise…
(w)   4 July 2023…Nil change…
(x)    13 July 2023…Coming to grips with the idea that this will be the new normal. Saw the surgeon and was told to expect 12-18 months before any improvement. Felt like the doctor was barely listening to him…
(y)    20 July 2023…Feeling okay at the moment – like a new normal…
(z)    27 July 2023…Had to cancel last session – irritated his neck on the weekend driving…
(aa)    9 August 2023…Got MRI and report – is concerned that the report has retrolisthesis which wasn’t in last report…
(bb)    15 August 2023…Saw surgeon – said can start lifting weights again – pain based…driving home on Thursday slammed the head to the left, sore on Friday. Did some weights following clearance…
(cc)     18 August 2023…Weights no issue, able increase weight with no issue. Feeling better for working out…
(dd)    24 August 2023…Had to take some time off work and increase his pain killers – feels like he pushed it a bit too hard at the gym. Was bed bound a bit due to the pain this week. Feels like he has learnt his lesson about pushing himself…
(ee)    29 August 2023…Has been a bit slack on neck strengthening, going to get back onto it.
(ff)    31 August 2023…No better, no worse – back at the gym and going well…
(gg)    12 September 2023…Had COVID and was bed bound – went to doctor and was concerned he would develop pneumonia as has a really bad chest infection…went into the surf and was okay…
(hh)    14 September 2023…running; had to stop for the smoke in the air for the back burning…
(ii)     3 October 2023…had to cancel last appointment because of partner having a biopsy. Then got new pain meds – Targin, really felt like it messed him up and could hardly walk. Heart attack on Monday the 25th and subsequent stroke following stents (five stents, 90% blockages). Unable to drive. Was bed bound for a couple of days – neck as a result has been really sore…
[36]It is the insurer’s contention that there is nothing in the physiotherapist’s clinical records that would suggest that there are any persisting radicular symptoms that warrant invasive cervical spinal surgery.
[37]The records do not reveal a deterioration in Mr Denmeade’s symptoms or complaints.
[38]Many of the entries state his symptoms were, ‘no better no worse’.
[39]The insurer accepts that the clinical records record occasional flare ups of his neck pain from time to time and which flare ups were generally associated with his exercising too vigorously.
[40]It is the insurer’s contention that the clinical entries of the physiotherapist reveal Mr Denmeade returning to a degree of normalcy following his accident and the December 2022 surgery performed by Dr Parkinson.
[41]There is reference to Mr Denmeade returning to touch football, running, and weight training and to exercising in the gym. The records also reveal him going into the surf.
[42]The insurer contends there is nothing in the clinical records that suggest any symptoms or complaints that would indicate a need for invasive surgical intervention.
[43]Otherwise, the insurer notes the entry of 3 October 2023 where Mr Denmeade was said to have had a heart attack and subsequent stroke following the insertion of the stents, but which is not otherwise addressed in the medical evidence.
[44]It is the insurer’s contention that whilst due weight needs to be given to the recommendation of treating doctors and in particular the treating surgeons and neurosurgeons, there needs to be a medical imperative for invasive spinal surgery taking place.
[45]With all due respect to Dr Reddy and his clinical experience, it is the insurer’s contention that medical imperative does not exist in the present matter at this time.
[46]It is the insurer’s contention that the medical evidence overwhelming reveals an improvement and then plateauing in Mr Denmeade’s condition over time. Dr Reddy himself notes there was a resolution of the radicular complaints following the December 2022 surgery performed by Dr Parkinson.
[47]It is the insurer’s contention that there is nothing in the clinical records that suggest there are symptoms that require surgical intervention in the form of cervical fusion.
[48]The insurer, through its lawyers, is currently requesting update clinical records of the treating GP at Australian Health Centre (Dr Khan) together with the records of
Dr Reddy and Active RX Physiotherapy. The insurer reserves its right to rely upon the additional clinical records once they become available.
Conclusion
[49]It is the insurer’s contention the assessor would find the proposed anterior cervical discectomy and fusion at C4/5 and C5/6 to be not reasonable or necessary.

Submissions of the insurer dated 23 July 2024

I refer to Allianz’s Submissions by reference to paragraph numbers:
[1]The insurer seeks review of the assessment of the treatment dispute conducted by Assessor Woo who reported 25 June 2024.
[2]The certificate was received on 26 June 2024. A review application is required to be lodged by 24 July 2024.
[3]The insurer makes an application under s 7.26 of the MAI Act for referral of the medical assessment to a review panel on the grounds that the medical assessment was incorrect in material respect.
[4]Section 7.26(5) of the MAI Act provides that the President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material aspect having regard to the particulars set out in the application.
[5]It is the insurer’s contention there exists reasonable cause to suspect the assessment is incorrect in a material respect. It is the insurer’s contention that:
•      Assessor Woo failed to have regard to relevant evidence that was before him at the time of the assessment.
•      The Assessor failed to engage with a clearly articulated argument put forward by the insurer.
•      Assessor Woo has misdirected himself with respect to Mr Denmeade’s pre and post-accident medical history, and his post-accident level of activity and disability.
•      The Assessor has failed to engage with other treatment options proposed to Mr Denmeade prior to undergoing an anterior cervical discectomy and fusion at C4/5 and C5/6.
[6]It is the insurer’s contention that Assessor Woo has failed to have proper regard to the clinical records containing evidence of Mr Denmeade’s pre-accident medical history, despite the Assessor raising a query as to the suggestion from Mr Denmeade’s GP of prior history of neck pain.
[7]The insurer further contends Assessor Woo failed to engage with the insurer’s clearly articulated argument in relation to Mr Denmeade’s post-accident level of activity. His failure to question Mr Denmeade and take a history of this has seen the Assessor misdirect himself as to Mr Denmeade’s post-accident disabilities and restriction.
[8]The Assessor has noted alternate initial conservative treatment options which had been recommended to Mr Denmeade but has failed to engage in any discussion or consideration of the reasonableness of those options being explored prior to an anterior cervical discectomy and fusion at C4/5 and C5/6, in circumstances where Mr Denmeade remains active.
[9]As a result of the failures, it is submitted he has failed to discharge his duties as a PIC assessor.
[10]He has failed to undertake the assessment in accordance with the law and has fallen into material error.
[11]As such it is the insurer’s contention there exists reasonable cause to suspect the assessment is incorrect in a material respect.
[12]Pursuant to the provisions of s7.26 of the MAI Act, the insurer seeks a review of the medical assessment.
[13]The insurer provides the following submissions with respect to the specific grounds relied upon.
Failed to have proper regard to the material and failure to engage with a clearly articulated argument in the insurer’s submissions
[14]The Assessor took a history of the accident noted the following history from the clinical records on the date of the accident:
He consulted with his GP Dr Rizwan Khan on the same day. Dr Khan noted:
- Having neck pain
- Chronic neck pain
- C spine tenderness
- Having restricted neck movement
- Due for physio review
- No pain in arms or legs
Comment
Dr khan’s clinical notes on the day of the subject accident suggest that Mr Denmeade had previous history of neck pain, but I do not find further clinical notes about his neck condition.
[15]The Delegate will see the Assessor noted the indication from the GP of a pre-accident neck injury but stated he could not locate any records in this regard.
[16]We draw the Delegate’s attention to the clinical records of Rx Physiotherapy [A2] which detail pre-existing right sided neck complaints. We specifically note the following entries:
(a)    29 May 2018 - woke up this am with stiff neck esp on right side. No referred pain or neural signs ... reduced rotation to L. Pain with c/sp rotation to the R…
(b)    3 September 2018 - just wants some releases RX STM upper back, neck, traps, shoulders, lower back, glutes
(c)    6 September 2018 - just wants some releases RX STM upper back, neck, traps, shoulders, lower back, glutes
(d)    13 September 2018 - just wants some releases – feeling pretty good but training hard. RX upper back, neck, traps, shoulders
(e)    23 December 2021 - just wants some releases RX STM neck, upper back, lower back, hamstrings, calves
(f)    31 May 2022 - right side neck and upper trap pain. Just tight more than anything else. Has been getting worse for few weeks. Is moving house this week. Headache today…
(g)    22 June 2022 - right side neck and upper trap pain has been feeling better and just more releases.
(h)    5 July 2022 - right side neck and upper trap – just still feeling tight but able to train and no restrictions.
[17]The Delegate will see the Assessor has failed to have any or any proper regard to the clinical records that were before him.
[18]The records of Rx Physiotherapy confirm Mr Denmeade made right sided neck complaints in May 2018.
[19]Mr Denmeade then sought release of, inter alia, his neck on multiple occasions in 2018 and again on 23 December 2021.
[20]Mr Denmeade made a further complaint of right sided neck pain on 31 May 2022, one day prior to the subject accident, which he reported had been getting worse for a few weeks. He also reported moving house that week.
[21]These clinical records confirm Mr Denmeade had longstanding right sided neck pain which was symptomatic at the time of the subject accident.
[22]The insurer contends this material was before the Assessor at the time of his examination, but which was not properly considered. This has seen the Assessor fall into error particularly in light of his specific comment regarding the absence of records relating to the ‘chronic neck pain’ reported by Dr Khan.
[23]The Assessor’s failure to note those records removed his opportunity to question Mr Denmeade on his failure to report the cervical pain history to the Assessor.
[24]The insurer contends in addition to the pre-accident entries, the Assessor failed to have regard to the initial post-accident complaints on 22 June, 28 June and 5 July 2022, which make no report of the subject accident.
[25]The insurer contends the Assessor has further fallen into error by not having proper regard to the documented development of Mr Denmeade’s symptomology or his level of activity post-accident.
[26]On the day of the accident, Mr Denmeade reported to Dr Khan suffering no pain in the arms or legs. At the time Dr Khan diagnosed a whiplash.
[27]Mr Denmeade then sought treatment from his physiotherapist 3 weeks later, on 22 June 2022. At that time he reported the same right sided neck and upper trapezius pain as he had prior to the accident. He reported feeling better and requested more ‘releases’.
[28]He returned on 28 June 2024 similarly reporting right sided neck and upper trapezius complaints but noting he was able to train and had no restrictions.
[29]Mr Denmeade next sought treatment from his physiotherapist on 5 July 2022 again for the same right sided neck and upper trapezius pain. At this consultation he reported it was feeling tight but he remained able to train and had no restrictions.
[30]It was not until 19 July 2022, 7 weeks post accident, Mr Denmeade attended his GP, Dr Khan reporting referred symptoms into the right arm.
[31]At no time does the Assessor note Mr Denmeade’s failure to inform Dr Khan of his neck pain in the weeks leading up to the subject accident.
[32]At no time does the Assessor comment on Mr Denmeade having been suffering from the same symptoms after the accident as were present for weeks before the accident.
[33]At no time does the Assessor question Mr Denmeade on his circumstances or any intervening events between the time he reported improvement to the time he commenced making more significant complaints.
[34]The insurer contends these failures have seen the Assessor fall into error.
[35]The records of Rx Physiotherapy also contain histories of Mr Denmeade participating in various sports and recreational activities following the accident which the insurer contends are at odds with a person suffering debilitating symptoms requiring a cervical fusion.
[36]The insurer detailed these activities in its previous submissions, arguing:
(a)    There was nothing in the physiotherapist’s clinical records that would suggest that there were any persisting radicular symptoms that warrant invasive cervical spinal surgery.
(b)    The records did not reveal a deterioration in Mr Denmeade’s symptoms or complaints.
(c)    There was reference to Mr Denmeade returning to touch football, running, and weight training and exercising in the gym. The records also revealed him going into the surf.
[37]Since the time of lodging those submissions, additional entries became available and were accepted by the PIC and provided to the Assessor before the examination.
[38]Those entries noted histories of Mr Denmeade taking long walks, running, cycling to Wollongong, paddle boarding and playing soccer with his children.
[39]Despite having the insurer’s submissions and the entirety of the records before him at the time of the assessment, the Assessor has failed to engage with the insurers submission and have regard to Mr Denmeade’s level of activity since the subject accident.
[40]The insurer contends this activity is relevant to the reasonableness and necessity for the proposed anterior cervical discectomy and fusion at C4/5 and C5/6.
[41]The insurer contends the Assessor’s failure to have regard to a clearly articulated argument has failed to accord natural justice to the insurer.
[42]The insurer contends the Assessor has also failed to have regard to material before him which confirms Mr Denmeade suffered a heart attack in 2023 which had a significant impact on his level of physical activity, general activities such as his ability to drive and work.
[43]The insurer contends the Assessor has failed to have regard to relevant pre and post-accident material which gives reasonable cause to suspect his assessment was incorrect in a material respect, and was capable of affecting the outcome of his assessment.
[44]The insurer contends
“the medical assessor’s reasons read exactly as they would if he had never seen the pre-accident medical evidence […] this failure to respond is a failure to accord procedural fairness and it constitutes a constructive failure to exercise jurisdiction and an error of law.”
[45]Additionally, it is the insurer’s contention the Assessor failed to take into account a relevant consideration which has seen him fall into error resulting in a failure to afford procedural fairness.
Misdirection
[46]The insurer contends the Assessor’s failure to have regard to relevant pre and post-accident material has seen him misdirect himself as to Mr Denmeade’s pre-accident condition, his symptomology immediately post-accident and the ongoing development of that symptomology leading to the surgery proposed, as well as his alleged level of disability post-accident.
[47]When considering causation, the Assessor noted:
“Mr Denmeade had immediate symptoms related to his cervical spine injury following the motor accident. The requirement of treatment including surgery relates to the injury caused by the motor accident.”
[48]In coming to his decision, the Assessor made no reference to the pre-existing neck complaints or the fact they were symptomatic at the time of the accident. The Assessor similarly has not made reference to the identical symptoms described after the accident, nor the references they were improving.
[49]The insurer contends that while the Assessor raised a query of potential pre-accident neck pain, this was not put this to Mr Denmeade, nor gleaned this information from the records before him.
[50]The insurer contends the Assessor’s failure to bring this to Mr Denmeade’s attention, and his consequent acceptance of a lack of relevant pre-accident history, has seen the Assessor misdirect himself as to the existence of pre-existing neck pain which was first noted in 2018, then in late 2021 and again one day before the accident, on a history of it worsening over recent weeks.
[51]Similarly, the Assessor’s failure to have proper regard to the development of Mr Denmeade’s symptomology has seen him misdirect himself in that he has not considered the improvement of his symptoms, nor the delay in the complaints of more significant symptoms.
[52]Additionally, the Assessor has also misdirected himself as to Mr Denmeade’s post-accident functioning with respect to sporting and recreational activities.
[53]The Assessor has failed to take a history of that activity from Mr Denmeade or consider them in his assessment, which the insurer contends caused him to misdirect himself when determining Mr Denmeade ought be treated by an anterior cervical discectomy and fusion at C4/5 and C5/6.
[54]The insurer contends the Assessor’s misdirection has caused him to fall into error, rendering his assessment incorrect in a material respect.
Failure to engage with other proposed treatment options
[55]Mr Denmeade was referred to pain specialist, Dr Kumar to assist with his pain management. Dr Kumar recommended Mr Denmeade undergo a right C4/5 and C5/6 transforaminal block followed by right C5 and C6 pulsed radiofrequency neurotomy, which he initially agreed to.
[56]The Assessor took a history from Mr Denmeade he no longer wished to undergo that procedure following discussion with Dr Khan.
[57]The Assessor has made no comment as to whether that treatment would have been suitable in treating Mr Denmeade’s symptoms and whether, had that treatment been undertaken, a cervical surgery would remain reasonable and necessary in the circumstances.
[58]The insurer contends the Assessor’s failure to engage with Mr Denmeade’s other suggested treatment options and lack of discussion as to whether it may be an appropriate preliminary treatment before proceeding to a fusion, has seen the Assessor’s assessment fall into error.
[59]The insurer contends the Assessor’s findings are consequently incorrect in a material respect.
Material respect
[60]In Meeuwissen v Boden & ANOR [2010] NSWCA 253, the NSW Court of Appeal held that once it is established that there exist reasonable grounds to suspect that a significant error has occurred, the matter must be referred to a review panel.
[61]Where there exists reasonable cause to suspect a significant error, fairness requires that a review proceeds so that a decision can be reached in accordance with the law. The MAI Act’s intention is to ensure that the flawed assessment process is corrected, and a proper assessment is issued.
[62]That is, once there exists reasonable cause to suspect a material error, the duty to refer the application is mandatory, not discretionary.
Effect on the outcome
[63]It is the insurer’s contention that a failure to have proper regard to the documentation renders the Assessor’s conclusion unreliable.
[64]It is the insurer’s contention the Assessor’s misdirection as to Mr Denmeade’s pre-accident condition, the development of his symptomology, and his post-accident level of functioning sees the Assessor’s conclusion thrown into doubt.
[65]The Assessor’s failure to consider or comment on alternative treatment proposed to Mr Denmeade by his treatment providers similarly calls for his determination to be questioned.
[66]It is the insurer’s contention there exists reasonable cause to suspect a material error in the Assessor’s certificate and, because of that, it follows that there is a mandatory requirement the matter be referred to a review panel.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundles of documents in accordance with the Directions dated 4 October 2024. The following is a summary of this material relevant to the dispute. Mr Denmeade has not filed a reply.

Clinical records of RX Physiotherapy

The provided clinical records of RX Physiotherapy note that Mr Denmeade has a past history of neck, shoulder and back pain.

Clinical records of Australian Health Care Centre as at 29 September 2022

Mr Denmeade consulted with his general practitioner (GP), Dr Rizwan Khan, on the day of the accident, reporting neck pain immediately after the accident.
Dr Khan noted that Mr Denmeade was experiencing:
·        neck pain;
·        chronic neck pain;
·        cervical spine tenderness;
·        restricted neck movement;
·        no pain in arms or legs, and
·        was due for a physio review.
Dr Khan’s clinical notes suggest that Mr Denmeade had a previous history of neck pain prior to the subject accident, but no further clinical notes suggest anything about his neck condition.
There are clinical notes of lower back pain with radiation to both legs in 2019 until
28 April 2022.

MRI of the cervical spine performed 15 July 2022 at C4/5

Shallow disc-osteophyte complex ridge with superimposed right foraminal disc protrusion. Mild central canal narrowing to the right of the midline with severe right foraminal narrowing. C5/6: Left central disc-osteophyte complex causes mild to moderate central canal narrowing to the left side of the midline, where the cord is slight indented and the CSF about the cord is effaced. Early left facet arthropathy and moderate left foraminal narrowing.

MRI of the cervical spine performed 30 August 2022

Little change since the previous examination. Most notable in the foraminal disc protrusion at the C4/5 on the right causing severe foraminal stenosis.

MRI of the brachial plexus performed 20 September 2022

No evidence of significant brachia! plexus injury.

MRI of the cervical spine performed 7 August 2023

Since an examination performed in August 2022 there appears to have been a right C4/5 laminoforaminotomy. There appears to be significant right foraminal stenosis at this level with potential irritation of the right C5 nerve root. At C5/6, there is a minor retrolisthesis. There is a left paracentral disc/ridge complex with mild flattening of the left ventral surface of the cord although no high-grade central stenosis or cord signal abnormality. Uncovertebral arthropathy produce severe left foraminal stenosis; there is mild right foraminal encroachment.

CT of the cervical spine performed 27 October 2023 at C4/5

There is loss of disc space and bilateral uncovertebral osteophyte formation. The degenerative changes cause severe right and moderate-to-severe left foraminal narrowing. The facet joints demonstrate unremarkable appearance. C5/6: There is loss of disc space and broad-based disc osteophyte formation and prominent left uncovertebral osteophyte formation is noted. There is moderate left foraminal narrowing, of doubtful clinical significance. Calcification is demonstrated within the posterior longitudinal ligament and a left paracentral location.

Whole body bone scan with SPECT performed 27 October 2023

Degenerative changes at the 4/5 and T7 /8 levels.

RE-EXAMINATION BY THE PANEL

The Panel, comprised of one legal member and two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh.

The review is a new assessment of all matters with which the medical assessment is concerned.
Our findings on the nature of the injury sustained are based on a review of the clinical records, the Medical Assessor’s examination and medical reports in the context of using the specialist medical knowledge on the Panel.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accidents Compensation Act 1999 (MAC Act) in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAI Act. In Raina v CIC Allianz Insurance Ltd Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the [MAI] Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
The Panel determined that Mr Denmeade be examined by Medical Assessor David Gorman. The Medical Assessor’s report is as follows:
Mr Denmeade attended the assessment unaccompanied.

HISTORY

Pre-accident medical history and relevant personal details

Mr Denmeade is a 44-year-old man who is left handed.
He lives with his partner and has three children - two aged 18 and 20 from a previous relationship and an 11-year-old with his current partner.
He was a non-smoker.
He only drank alcohol socially.
He completed a course in business and worked as State Operations Manager with Toll.
He had been working with Fitness First since 2017 and was a Manager at the time of the motor accident. He was made redundant from mid-June 2024 he reported.
He now does some administrative work for a small company from home. He did 4-8 hours per week.
In September 2023, after the subject accident, he had an acute myocardial infarct. He had stents placed. He reported that this procedure was complicated by an embolism causing 15 minutes of blindness. He has recovered fully.
His past history included injury to his left ring finger extensor tendon which was repaired and had a full recovery.
In 2002, he underwent a left open carpal tunnel release and had a full recovery.
In 2010/2011, he was boxing and fractured his right 4th metacarpal - he required open reduction and internal fixation with plate and screws. He had a full recovery.
In 2013, he was boxing when he ruptured the right biceps tendon at the distal insertion to the proximal radius. He had surgical repair and had a full recovery.
He trained as a Personal Trainer and in time with Fitness First he was actively working out in the Gym. He had a Physiotherapist in the Fitness First facility and he said that he had frequent visits with various musculo-skeletal complaints. These included lower back pain with radiation to both legs at times from 2018 until 2022 as well as neck pain during the same period.

History of the motor accident

On 1 June 2022, he was travelling to work. He was driving with seat belts applied. He entered an intersection past a stop sign covered by a tree. He T-boned a car crossing the intersection, hitting the car on the passenger side.
Air bags in his vehicle were deployed and the vehicle was subsequently written off. Police and ambulance were not called to the scene. He went home, which was only three blocks from the accident scene.

History of symptoms and treatment following the motor accident

He had neck pain immediately following the motor accident.
He consulted with his GP Dr Rizwan Khan on the same day. Dr Khan noted restricted neck movement without pain in the arm or legs. He stated that his neck pain was "chronic".
He attended physiotherapy.
He had an MRI of the cervical spine and saw Dr David Samra, Sports Medicine Physician.
Dr Samra referred him to Dr Richard Parkinson, neurosurgeon who referred him for nerve conduction studies and MRI brachial plexus. MRI of the brachial plexus was normal. Nerve conduction studies showed polyradiculopathy including C5, and a mild right carpal tunnel syndrome.
Based on the nerve conduction studies and his biceps weakness, Dr Parkinson recommended a surgery at C4/5 with decompression of the right C5 nerve root.
On 6 December 2022, Dr Parkinson performed a right C4/5 micro foraminotomy and distal rhizolysis. Mr Denmeade developed post-operative wound infection and underwent a wound washout on 20 December 2022.
Dr Parkinson reviewed him on 6 July 2023 and noted: "He is still experiencing some occasional anterior arm pain and is still slightly weaker on the biceps on the right than the left. He is still experiencing some mechanical neck pain."
He underwent an MRI of the cervical spine, performed on 7 August 2023 and CT scan of the cervical spine on 27 October 2023. He had a bone scan on 27 October 2023.
He saw a pain specialist, Dr Kumar, who recommended right C4/5 and C5/6 transforaminal block followed by right C5 and C6 pulsed radiofrequency neurotomy. After discussing with Dr Khan, Mr Denmeade decided not to proceed with the procedure.
Dr Khan referred to Dr Raj Reddy, neurosurgeon for a second opinion. Dr Reddy reviewed him on 27 November 2023 and noted the stiffness in the cervical spine, radicular symptoms with no neurological abnormalities.
On 14 December 2023, Dr Reddy proposed an anterior cervical discectomy and fusion at C4/5 and C5/6. Mr Denmeade has not had this procedure.

Details of any relevant injuries or conditions sustained since the motor accident

Nil relevant.

Current symptoms

Mr Denmeade complains of consistent neck pain which is still severe.
It is worse after any exercise, even walking. He can only walk for 15 minutes and lift 5kg.
He still cannot turn the neck easily to the left.
The pain is under the base of the skull on both sides. It radiated to the trapezii on both sides, the right more than the left.
He has difficulty driving due to neck pain and restricted movement.
Mr Denmeade reported that he had tried to return to touch football, running and to weight training. However, he said that he could not continue with any of these activities.

Current and proposed treatment

He takes Targin 1517.5mg, Endone 5mg prn (20 per 2-4 weeks), aspirin, ticagrelor, Olmetec and metoprolol. He had been on Lyrica twice a day.

CLINICAL EXAMINATION

General presentation

Mr Denmeade is 190cm in height and weighed 125.2kg. He had lost 10kg over the last 10 months.
He was 115kg at the time of the accident and had gained weight up to 135kg after the accident.
He has a normal gait.

Cervical spine

He indicated pain the cervical spine and right (greater than left) trapezius. There was tenderness in these regions.
Range of movement was 2/3 normal flexion and extension.
Rotation however was only 1/3 to the left. Rotation was 2/3 to the right.
Lateral flexion was 1/3 to the left but was 2/3 to the right.
There was no wasting of the upper limbs - biceps maximum circumference was 37.5cm on the right and 36.5cm on the left. The maximum forearm circumference was 34.5cm on the right and 35.5cm on the left.
There was no weakness in the upper limbs.
Reflexes were equal and normal in both upper limbs.
Sensation was normal in both upper limbs.

Comments on consistency

He was cooperative and consistent.

Summary of relevant radiological and medical imaging and other investigations

The radiological and medical imaging referred to at [29]-[34] of this Determination was reviewed at the assessment.

DETERMINATIONS

Treatment and Care - Causation

Mr Denmeade had immediate symptoms related to his cervical spine injury following the motor accident. He went on to have decompression surgery because of the ongoing pain.
Before the accident he did have episodes of neck pain - he put this down to training heavily six days per week. Because the Physiotherapist was in the Fitness First facility he would frequently have treatment for his neck, back, legs and feet he reported.
The Panel believes the requirement for treatment, including surgery, relates to the injury caused by the motor accident. He has significant residual symptoms following decompression surgery and he requires further surgery due to failure of conservative treatment.

Treatment and Care - reasonable and necessary

The medical imaging findings, combined with his current clinical presentation, suggests
Mr Denmeade's symptoms are related to injury to the C4/5 and C5/6 disc levels with degenerative changes on both the left and right sides aggravated by the accident. The single level right C4/5 micro foraminotomy and decompression of the right C5 nerve root did not resolve the symptoms.
He has had extensive therapy. Dr Kumar, his pain specialist, suggested to assist with
Mr Denmeade’s pain management that he undergo a right C4/5 and C5/6 transforaminal block followed by right C5 and C6 pulsed radiofrequency neurotomy. This may improve some radicular symptoms but not the cervical pain or stiffness - the pain and stiffness are likely discogenic rather than neuropathic.
The surgery to both C4/5 and C5/6 levels in the form of anterior discectomy and fusion has the potential to improve Mr Denmeade’s symptoms by immobilising the symptomatic discs. There are definite risks as detailed by Dr Reddy - additionally the acute myocardial infarction in September 2023 would now need to be considered in the decision regarding surgery.
However, Mr Denmeade states that his symptoms are severe enough for him to have surgery despite risks. This procedure the Panel believes is reasonable and necessary.

Reasonable and necessary in the circumstances

Mr Denmeade is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
In Rosenbauer v Allianz Australia Insurance Limited [2022] NSWPICMP 470, principal member John Harris stated:
[62] When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW, 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.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
Principal member Harris also stated in Rosenbauer:
[63]     Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.
[64]     Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled. They include:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[65]     Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
[66] The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of Mr Denmeade. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
[67]     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”.
[68]     The Panel adopts the examination report prepared by Medical Assessor Kenna. We do not accept that further sessions of physiotherapy will be effective. The ongoing passive nature of the physiotherapy being undertaken lacked a clinical and rehabilitative context suggesting that further treatment would not be beneficial.
[69]     Despite the nominal cost and physiotherapy being a recognised form of treatment, we do not accept that the proposed treatment in this matter is necessary.
I respectfully adopt what Principal Member Harris said in Rosenbauer at [63]-[69] above and say that they are equally applicable to this case.

Did the treatment relate to the injury resulting from the motor accident

The question is whether the specified treatment “relates to the injury caused by the motor accident”.
Principal Member Harris also referred to the nature of the test in relation to the need for treatment and he noted that in AAI Limited v Phillips the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
The Review Panel was in no doubt that the accident was a contributing factor to the need for treatment and causation is therefore satisfied.

HOW THE PANEL DEALT WITH THE INSURER’S SUBMISSIONS

Submissions dated 29 February 2024

Submission [32] “…given the absence of radicular symptoms or other objective findings, the proposed cervical discectomy and fusion is not reasonable or necessary”.
Mr Denmeade told Medical Assessor Gorman, who examined him on 23 January 2025, that his neck pain was ongoing and very severe. In addition to the neck pain, there was stiffness.
Medical Assessor Gorman considered that Mr Denmeade was a straight-forward man who was not exaggerating and whom conveyed to him that he could not put up with the pain any longer and that he would go ahead with the surgery proposed by Dr Reddy because of the severity of the pain.
Mr Denmeade told Assessor Gorman that he had difficulty driving due to neck pain and restricted movement. He told him that he still cannot turn his neck to the left easily.
He told Medical Assessor Gorman that the pain was under the base of his skull and radiating to the trapezii on both sides.
On physical examination, Medical Assessor Gorman found that rotation of the cervical spine to the left was only one-third of the expected range.
Mr Denmeade further told Medical Assessor Gorman of the medication that he takes, Targin, Endone, aspirin, ticagrelor, Olnetec, metoprolol, and Lyrica.
Medical Assessor Gorman noted that on the MRI of the Cervical Spine of 30 August 2023, the foraminal disc protrusion at C4/5 on the right was causing severe foraminal stenosis.
Furthermore, commenting on the MRI of the cervical spine of 7 August 2023, in respect of the right foraminal stenosis, there was a potential of irritation of the right C5 nerve root. In addition, uncovertebral arthropathy produced a severe left foraminal stenosis.
The Panel concluded that the requirement for treatment, including the surgery, related to the injury caused by the accident. He has significant residual symptoms following the decompression surgery, and he requires further surgery due to the failure of conservative treatment.
The Panel stated that the surgery to both C4/5 and C5/6 levels in the form of anterior discectomy and fusion had the potential to improve Mr Denmeade’s symptoms by immobilising the symptomatic discs. It acknowledged that there were definite risks as outlined by Dr Reddy and in addition, Mr Denmeade had an acute myocardial infarction in September 2020.
Mr Denmeade told Medical Assessor Gorman on 23 January 2025 that the symptoms were severe enough for him to undertake the surgery despite the risks.
The Panel, taking everything into account, considered that the procedure was reasonable and necessary.

CONCLUSION

The Panel confirms the Certificate of Medical Assessor Alexander Woo, dated 25 June 2024, that the following treatment and care:
· the anterior cervical discectomy and fusion at C4/5 and C5/6 as proposed by treating neurosurgeon, Dr Raj Reddy dated 14 December 2023,
relates to the injury caused by the motor accident AND is reasonable and necessary in the circumstances.

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Citations

Allianz Australia Insurance Limited v Denmeade [2025] NSWPICMP 169

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Meeuwissen v Boden [2010] NSWCA 253

Rosenbauer v Allianz Australia Insurance Limited [2022] NSWPICMP 470

[2025] NSWPICMP 169

17 March 2025