Allianz Australia Insurance Limited v Jubian
[2025] NSWPICMP 815
•22 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Jubian [2025] NSWPICMP 815 |
CLAIMANT: | Aida Jubian |
INSURER: | Allianz Australia Insurance Limited t/as Allianz |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 22 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s disputed treatment 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 confirmed that the proposed referral was not causally related to the motor accident, and was not reasonable and necessary in the circumstances; Briggs v IAG Limited Trading as NRMA Insurance; the certificate of MA was revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate issued by Medical Assessor Shahzad of 2. The Panel issues a new certificate stating the proposed referral to Dr Kerdic was not causally related to the motor accident, and not reasonable and necessary as a consequence of the subject accident. |
STATEMENT OF REASONS
INTRODUCTION
Aida Jubian (Ms Jubian), was involved in a motor vehicle accident (the accident) on
29 November 2022.On 30 November 2022, Ms Jubian attended Revesby Family Clinic (RFC) and gave a history of having fallen on a bus the previous day, 29 November 2022.
Ms Jubian complained of neck pain, upper back pain and right shoulder pain radiating to the upper limb. She denied a head injury.
Ms Jubian returned to RFC on 21 December 2022 with complaints of pain in her neck, back, hip and right shoulder. Dr Elhafi completed a Certificate of Capacity when he diagnosed “neck strain/back pain/hip strain/R shoulder strain”.
On 13 January 2023, Ms Jubian applied for personal injury benefits. Ms Jubian alleged that in the subject accident she sustained injuries to her neck, shoulder, hip and knees.
Ms Jubian also confirmed a history of hip pain.On 9 January 2024 Ms Jubian was referred to Dr Richard Kerdic for review of lower limb varicosities (R12). It was recorded that the varicosities had been aggravated by the subject accident.
The insurer, Allianz, advised by letter on 13 April 2023 that it did not accept liability of payment for statutory benefits beyond 26 weeks of the accident.
Ms Jubian has applied for a treatment dispute determination by the Personal Injury Commission (Commission) in respect to the insurer’s decision to decline approval for a consultation with vascular surgeon, Dr Kerdic.
RELEVANT LEGISLATION
Section 3.24 of the Motor Accident Injuries Act 2017 (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)”.
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.”
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Farhan Shahzad, who assessed Ms Jubian on 6 November 2024 and issued a certificate dated 29 November 2024.
Medical Assessor Shahzad referred to the history of the motor accident, the history of symptoms, and treatment before and following the motor accident. Medical Assessor Shahzad also provided a summary of relevant medical documentation, detailed the current symptoms, and set out the current and proposed treatment.
Medical Assessor Shahzad’s assessment of the causation and reasons were as follows:
“Treatment and Care – Causation
Upon physical examination, the Ms Jubian presents with extensive varicose veins bilaterally, displaying features consistent with trauma, including bruising, colour changes, swelling, pain, and tenderness.
It is my professional opinion that the condition has significantly aggravated following the injury. While there is a prior history of varicose vein treatment, the aggravation and escalation of symptoms post-injury are notable and directly linked to the reported s.
Treatment and Care - reasonable and necessary
Given the severity of the current presentation, including the increased pain and functional impact, I opine that the request for referral with Dr Kerdic, Vascular Surgeon is reasonable and necessary in the circumstances.”
Medical Assessor Shahzad then certified that the proposed referral to Dr Kerdic was causally related to the motor accident, that it was reasonable and necessary, and that the treatment would improve Ms Jubian’s recovery.
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Shahzad on 10 December 2024 under s 7.26 of the MAI Act.
Rule 106(3)(b) of the Rules, states that the respondent to a review application, made under s 7.26 of the Act, may lodge a reply within 21 days of registration of the application.
Ms Jubian’s reply was due on 29 January 2024. Ms Jubian’s daughter contacted the Commission on 17 January 2024 and requested an extension of time to submit her reply.
Ms Jubian’s daughter noted that her regular doctor was away, and Ms Jubian wanted to consult her doctor before submitting a reply.On 30 January 2024 a delegate of the President extended the time for Ms Jubian to provide a reply to 28 February 2025.
On 3 April 2025, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and convened this Panel to conduct the Review:
“11. I am satisfied that there is reasonable cause to suspect that Medical Assessor Shahzad did not provide a path of reasons which set out the way he arrived at his findings. In making his finding on causation, Medical Assessor Shahzad did not comment on the history of the accident he obtained from Ms Jubian, medical information before him, radiological investigations, or the CCTV footage of the actual incident to explain how he formed his opinion.
12. I am satisfied the requirements for referring the matter to a review panel under s 7.26(5) of the Act have been met.”
The review provisions provide that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the Personal Injury Commission Act 2020 (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.
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.
The Panel issued Directions to the parties dated 9 April 2025, 4 June 2025 and 25 July 2025, directing that the parties file and serve bundles of documents and indicating that it intended to hold a audio-visual meeting on 8 August 2025.
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[1] his Honour Justice Wright stated at [35]:
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic 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 contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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 trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 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; and
(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.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[2] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that Ms Jubian establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[2] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[3] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73. The second review panel did not address the question of whether, on the balance of probabilities, the accident caused the annular tear, even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[3] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
EVIDENCE BEFORE THE REVIEW PANEL
The following documents were submitted before the panel for review:
(a) the insurer’s submissions dated 11 April 2024;
(b) the insurer’s submissions dated 19 December 2024;
(c) the claimant's submissions dated 15 March 2024;
(d) the President delegate’s decision dated 5 July 2024;
(e)
referral for medical assessment to Medical Assessor dated 15 July 2024 and
14 October 2024;
(f) certificate of Medical Assessor Farhan Shahzad;
(g) Aida Jubian’s bundle of medical records dated 6 May 2025;
(h) all Panel’s directions and correspondence;
(i) insurer’s bundle of documents dated 21 May 2025;
(j) insurer’s additional documents, and
(k) the President delegate’s decision dated 30 January 2025 and 3 April 2025.
SUBMISSIONS
INSURER’S SUBMISSIONS DATED 11 APRIL 2024
The Panel summarises the submissions of the insurer by reference to paragraph numbers:
[Preface] The insurer submits that liability for statutory benefits beyond 26 weeks was denied by notice dated 11 April 2023. Ms Jubian lodged a treatment-dispute application on 15 March 2024 concerning the insurer’s decision of 31 January 2024 to decline a consultation with Vascular Surgeon Dr Richard Kerdic, which was affirmed on internal review on 14 February 2024. The insurer submits the disputed treatment is neither reasonable nor necessary and is not causally related under s 3.24(2).
[1] Pre-accident medical evidence
[1.1] – [1.3] Bankstown Medical Practice (BMP) records since March 2012 show intermittent low-back pain (April 2012), back and knee pain (March 2013), and increased left-shoulder pain (July 2013). On 3 September 2013
Ms Jubian reported leg pain with varicose veins, was advised compression stockings, and was referred to Vascular Surgeon Dr Anthony Freeman.[1.4] – [1.6] On 9 and 30 September 2013 she reported back and left-leg pain attributed to a January 2013 fall. Further entries document back and knee pain in 2015 and persistent back pain by March 2017.
[1.7] – [1.9] On 28 February 2018 she reported a rear-end collision of 22 February 2018 with neck, back and chest-wall pain. In September 2018 she complained of leg pain since that accident together with bilateral foot pain and night calf cramps. A physiotherapy note of 19 February 2020 records nocturnal leg numbness and knee and shoulder pain.
[1.10] – [1.12] A venous Doppler on 3 January 2020 showed no deep venous thrombosis, and a lumbar CT demonstrated right L5 nerve-root impingement. She ceased attending BMP after September 2020. RFC records note attendances since 2017, including a 2017 can-drop injury to the left ankle.
[1.13 ]– [1.15] On 22 February 2018 she attended Bankstown Hospital after a low-speed motor vehicle accident and was diagnosed with a seatbelt-related musculoskeletal soft-tissue injury. On 25 May 2018 she reported the accident and body numbness. A left-shoulder ultrasound on 28 May 2018 showed supraspinatus tendinitis/impingement.
[1.16] – [1.18] Between 20 and 29 June 2018 records note shoulder and neck pain with arm referral, later improving neck pain, bilateral dorsal-foot pain and night cramps, and physiotherapy observations of persistent multi-region pain. On 27 September 2020 she complained of right ankle and foot pain, and on
3 March 2021 of left-calf pain; a venous duplex that day was normal.[1.19] – [1.21] On 31 March 2021 she reported a home fall with back pain radiating to the lower limbs. A lumbar CT on the same date showed L5/S1 foraminal narrowing affecting the descending left L5 root. Entries from April to June 2021 record ongoing back pain radiating to the limbs and a rheumatology review.
[1.22] – [1.24] Physiotherapy on 23 June 2021 recorded increased low-back, bilateral-hip and right-shoulder pain after a fall and only minimal improvement. RFC diagnosed left trochanteric bursitis on 2 July 2021, which ultrasound confirmed on 6 July 2021. A further ultrasound on 15 November 2021 showed gluteus minimus/medius tendinopathy.
[1.25] – [1.27] On 2 December 2021 RFC recorded chronic hip pain, and on 22 February 2022 further hip and low-back pain. A home fall on 24 March 2022 resulted in right knee and foot pain; on 21 April 2022 she had right-heel pain with ultrasound consistent with plantar fasciitis. On 6 September 2022 a lower-back cortisone injection was recommended, although she was hesitant.
[1.28] – [1.31] On 13 September 2022 she reported generalised aches and pains, insomnia and low mood. A whole-body bone scan on 16 September 2022 showed mild osteoarthritic changes and degenerative disease at L5/S1 with facet-joint activity. In October 2022 she experienced chronic pain and right-knee pain with ultrasound showing minimal effusion, and a DEXA scan on 28 October 2022 showed osteopenia.
[1.32] – [1.35] Rheumatologist A/Prof Thakkar on 1 and 29 June 2021 documented a slip/fall at home with right low-back pain extending to both legs, mild lumbar spondylosis and discovertebral degeneration at L4/5–L5/S1, and sacroiliac dysfunction. A prior CTP file relating to the 22 February 2018 accident recorded lower-leg and foot inflammation. An AHRR of 26 April 2019 noted pain in the left shoulder, hips, knees and feet described as stabbing, aching, tight, sharp and pulling.
2) Post-accident treating evidence
[2.1] – [2.3] On 30 November 2022, the day after the bus incident, RFC recorded neck, upper-back and right-shoulder pain radiating to the arm and no head injury. Imaging that day showed multilevel cervical disc disease, thoracic osteophytes and moderately severe right acromioclavicular joint arthropathy. On 21 December 2022 the general practitioner (GP) diagnosed neck strain, back pain, hip strain and right-shoulder strain.
[2.4] – [2.6] Similar complaints continued to 7 February 2023. An AIB of 13 January 2023 claimed neck, shoulder, hip and knee injuries, with a history of hip pain confirmed. Orthopaedic surgeon Dr Maniam on 30 January 2023 recorded cervical, lumbar and right-shoulder injuries with normal lower-limb neurology and diagnosed an aggravation of lumbar degenerative disease.
[2.7] – [2.9] Physiotherapy on 6 February 2023 documented pronounced pain-avoidant behaviour approximately five weeks after the bus incident. A lumbar MRI on 15 February 2023 showed multilevel facet arthropathy and degenerative disc disease worst at L5/S1 and L4/5 (left). A venous Doppler on 11 December 2023 was normal.
[2.10] – [2.11] On 9 January 2024 Ms Jubian was referred to Dr Kerdic for lower-limb varicosities said to have been aggravated by the accident. On 21 February 2024 the GP asserted feet and lower-limb injuries and left-calf pain with Doppler revealing varicosity and no prior leg pain, assertions that the insurer submits are inconsistent with prior records and the December 2023 Doppler.
3) Response to treatment in dispute
[3.1] – [3.3] The insurer submits that the dispute concerns its refusal to fund a vascular consultation and that the requested treatment is neither reasonable and necessary nor accident-related given the pre-existing leg pain and varicosities and the absence of evidence of accident-related aggravation.
[3.4] – [3.6] The insurer submits that there were no post-accident vascular-leg complaints until February 2024—over a year after the incident—and that the December 2023 Doppler was normal. Accordingly, it submits the referral to Dr Kerdic is unrelated to accident injuries and is not reasonable or necessary.
Submissions of the insurer dated 19 December 2024
The Panel summarises the submissions of the insurer by reference to paragraph numbers:
[1.1] – [1.2] The insurer applies under s 7.26 of the MAI Act to review Medical Assessor Farhan Shahzad’s Certificate and Reasons dated
29 November 2024. A review lies only where the assessment was incorrect in a material respect, and the insurer alleges two such errors: inadequate reasons and failure to consider material or to put inconsistencies to the claimant.[2.1] – [2.3] The insurer submits the Medical Assessor failed to disclose the path of reasoning as required by authority. Although the Medical Assessor stated that the claimant’s pre-existing varicose veins were significantly aggravated by the injury, the certificate does not explain how the accident produced that aggravation. Read as a whole, the certificate does not reveal how the conclusions were reached.
[2.4] – [2.6] The insurer submits the certificate does not reason through the necessary causal steps: what injuries were alleged, whether those injuries were caused by the accident, and how such injuries could cause or aggravate varicose veins to necessitate treatment. Instead, it largely recounts a history of neck and shoulder symptoms, imaging findings, and a normal venous Doppler without connecting them to varicose-vein causation.
[2.7] – [2.8] The insurer submits that three of the four reports cited on page 5 pre-date the accident and evidence significant lower-back issues in the year before it. The analysis is said to blur pre- and post-accident material or to fail to grapple with why a significant pre-existing condition would be significantly exacerbated, thereby evidencing inadequate reasons.
[3.1] – [3.3] The insurer submits the Medical Assessor did not properly consider the CCTV footage or put inconsistencies to the claimant. The claimant’s description of a full bus, a fall down the aisle onto a disability chair and multi-site impact is said to be inconsistent with CCTV showing a near-empty bus, a loss of footing while walking to a seat, and a stumble while sitting, with no aisle fall or multi-site impact.
[3.4] – [3.5] The insurer submits the failure to confront those inconsistencies denied procedural fairness. Proper consideration of the footage would, it submits, show the incident was not capable of causing the alleged injuries, so the proposed vascular treatment is neither accident-related nor reasonable and necessary.
[4.1] The insurer submits the Review Panel should declare the certificate null and void and should certify that the proposed treatment neither arises from the accident injuries nor is reasonable and necessary.
Submissions of the claimant (Commission’s Application re treatment dispute)
The Panel summarises the submissions of the claimant by reference to paragraph numbers:
[1] – [3] This Application concerns a treatment dispute arising from the insurer’s decision of 31 January 2024 to decline a consultation with vascular surgeon Dr Kerdic, which was affirmed on internal review dated
14 February 2024. The application seeks the Commission’s resolution of that dispute.[4] – [6] The claimant submits that a consultation with Dr Kerdic should be approved because her lower-limb varicosities were aggravated by the bus accident and require specialist assessment and management. This is supported by a GP referral dated 9 January 2024 requesting vascular review “with lower limbs varicosities… aggravated post bus accident.”
[7] – [9] The claimant relies on the occurrence of the subject motor accident on
29 November 2022 in Bankstown, NSW, and submits that the disputed vascular consultation relates to injuries arising from that accident.[10] – [12] The claimant submits that the statutory criteria in s 3.24 of the MAI Act are met because the proposed consultation is reasonable and necessary in the circumstances and relates to the injury resulting from the motor accident. The claimant therefore seeks the Commission’s determination in her favour.
[13] – [15] In terms of outcome, the claimant asks that the insurer’s decision be set aside and that funding for the consultation with Dr Kerdic be approved so that appropriate specialist assessment and management can proceed.
MEDICAL EXAMINATION
Details of who attended the assessment
Ms Jubian was interviewed by Medical Assessor Shane Moloney via an audio linkup with teams in the presence of an interpreter, Yvette Eskander, on Friday 8 August 2025.
History
Pre-accident medical history and relevant personal details
Ms Jubian stated that she was a widow and pensioner and rented a two bed unit. She stated that she had had treatment for varicose veins about 35 years ago with surgery and sclerotherapy. She stated that she had had various aches and pains prior to the accident but was vague about any details.
History of the motor accident
Ms Jubian stated that she got onto a bus on 29 November 2022 and as she was scanning her Opal card the bus took off. She was uncertain as to whether the bus was crowded or fairly empty. Her description was that she fell onto a disabled chair, hitting her shoulder, neck, back and right hip. She stated that there was slight pain initially but she was able to get off the bus at her stop and went home.
Medical Assessor Moloney discussed with her the mechanism of the fall which on video looked like she fell onto a seat at the front of the bus which were commonly reserved for the elderly, women with children et cetera. There was no fall down the aisle or any apparent collision with support structures. Ms Jubian stated that she may have seen part of the video but was vague on any details she could remember.
Ms Jubian consulted her GP, Dr Elhafi the next day. At that time, she had aches in the neck, right shoulder and low back. He referred her for physiotherapy and scans. Later on, her GP referred to Dr Maniam, an orthopaedic surgeon who organised cortisone injections into a lower back. Ms Jubian stated that she had side-effects from this injection with an increase in blood sugar and a lowering of blood pressure. There was a later injection into the right heel.
There were no further injuries or accidents sustained since this motor accident.
Current symptoms
Ms Jubian stated that there is widespread pain at present which was very bad involving her neck, shoulders, legs and back. She has persistent pain down both legs and all these pains are getting worse. She stated she feels depressed due to the pain.
The varicose veins persist and are treated at present with compression stockings. Due to the persistent pain in the legs, Ms Jubian stated that she can’t walk and feels paralysed and expects compensation of $500,000 for this injury.
Present treatment
Present medication is Naprosyn, Panadol osteo and Norspan patchs. She stated that she uses a stick when she goes walking outside the house. No manual therapy is being undertaken at present. She consults her GP when necessary.
There was a referral to the vascular surgeon Dr Kerdic who apparently told her that surgery was not appropriate to her age and general condition but may have offered her injections in the form of sclerotherapy which is not covered by the insurance company.
Discussion
The Panel has determined that is not medically plausible for the type of injury sustained in the subject bus accident to have caused a change in pre-existing varicose veins. There was no direct trauma to the veins and on viewing the video of the fall, it seems that she landed on the seat on her buttocks.
Therefore, the Panel does not consider that the referral to a vascular surgeon relates to the injury caused by the accident and is not reasonable and necessary in the circumstances.
Determinations treatment and care – causation
The Panel held a final teleconference on 22 August 2025.
The Panel discussed Medical Assessor Moloney’s interview with Ms Jubian.
The Panel had all materials on Pathways available to it.
The Panel reviewed the CCTV footage of Ms Jubian’s fall.
The Panel found no causation or medical plausibility between Ms Jubian’s fall, in which she appears to land on her buttocks, and a worsening in her pre-existing varicose veins.
The Panel agreed with the insurer’s submissions on the basis that Medical Assessor Shahzad provides no logical reasoning for the causation of the varicose veins and the accident.
DIAGNOSIS, CAUSATION AND CONSIDERATION
The Panel’s conclusion is that the varicose veins are not caused by the accident.
CONCLUSION AND CERTIFICATION
For the above reasons, the Panel rejects the certificate issued by Medical Assessor Shahzad of 29 November 2024. The Panel rejects the request for referral with Dr Kerdic, vascular surgeon.
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