Allianz Australia Insurance Limited v Lombardo

[2025] NSWPICMP 817

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Lombardo [2025] NSWPICMP 817

CLAIMANT:

Ana-Louna Lombardo

INSURER:

Allianz Insurance Australia Limited

REVIEW PANEL

MEMBER:

Member Gary Victor Patterson

MEDICAL ASSESSOR:

David Gorman

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

23 October 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; reasonable and necessary treatment disputes; claimant’s vehicle was stationary behind other vehicles at a red light when it was hit in the rear by the insured truck; claimant involved in two subsequent motor vehicle accidents; causation in issue; claimant says she had pain in the shoulder radiating to the left arm and hence was referred to a neurosurgeon who recommended surgery; claimant did not undergo surgery and has continued with physiotherapy and pain relief; insurer refused various medications and pulsed radio frequency of left spinal accessory  nerves as not being related to the subject accident; Medical Assessor found all treatment related, but some not reasonable, nor necessary; Held – Review Panel found all referred treatments related to accident, reasonable, and necessary; causal certificate confirmed; treatment certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – CAUSATION

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel confirms the certificate dated 10 March 2025.

CERTIFICATE

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act)

2.     The Review Panel revokes the certificate dated 10 March 2025 and issues a new certificate determining that the following treatment and care:

(a)    Gabapentin;

(b)    Norgesic;

(c)    Metamucil, and

(d)    Pulsed radio frequency of left spinal accessory nerves combined with Botox injections as recommended by Dr Trui Richmond.

IS REASONABLE AND NECESSARY in the circumstances.

(a)     

STATEMENT OF REASONS

INTRODUCTION

1. The subject motor accident occurred about 1.30pm on 23 April 2020 at the intersection of Bruce Street and Cumberland Highway at Merrylands West. The claimant was driving a Volkswagen Tiguan sedan. The claimant’s vehicle was stationary behind other vehicles at a red light when it was hit in the rear by the insured truck. The claimant’s vehicle was pushed into the vehicle in front of it.

2. There was no reported loss of consciousness. The claimant is unsure if there was a head strike. The airbags in the claimant’s vehicle were not deployed. The claimant’s vehicle was written off for insurance purposes. Police were on site performing RBT duty. They helped extricate the claimant from her vehicle. An ambulance was not called. The claimant was driven home by her brother.

3. About a week after the accident, the claimant states that she could not move her neck. She was conveyed to Nepean Hospital by ambulance where a CT scan revealed an annular tear. The claimant was prescribed Lyrica and advised to see her GP for a follow up MRI scan. The claimant says she had pain in the shoulder radiating to the left arm and hence was referred to a neurosurgeon who recommended surgery. The claimant did not undergo surgery and has continued with physiotherapy and pain relief.

4. Allianz Insurance Australia Limited (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer declined a request dated
   13 September 2023 for reimbursement of the costs of various medications, being Gabapentin, Norgesic, Normaison and Metamucil. The insurer did not consider the requested medications to be reasonable and necessary treatment and care in accordance with Part 4 of the Motor Accident Guidelines (the Guidelines). That decision was confirmed upon internal review.

5. The insurer declined a request by the claimant’s treating doctor for approval of the following:

   (a)    pulsed radio frequency left spinal accessary nerve combined with Botox injections, and

   (b)    on a separate occasion, pulsed radio frequency bilateral greater and lesser occipital nerves plus blocks.

   The insurer did not consider that request to be reasonable and necessary and related to the motor accident, (considering there is no evidence to ascertain how the treatments will assist or are related to the motor accident). That decision was confirmed upon internal review. That decision was based upon a previous finding by Medical Assessor Moloney that there was no nerve root compression to the claimant’s cervical spine.

6. The claimant was involved in a second motor accident in January 2021 in which the claimant suffered injuries to her lumbar back and right leg. The insured driver in that accident reversed into the claimant’s vehicle which was stationary. The claimant lodged a claim that was closed based upon her injuries being deemed as minor (now threshold). The insurer also was on risk for that second accident.

7. The claimant was involved in a third motor accident in February 2022 when her vehicle was stationary at a set of red traffic lights and was rear-ended by a truck, causing some minor damage to the claimant’s vehicle. The claimant did not lodge any CTP claim arising from that incident.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about:

   (a)    whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, cl 2(b) of the Act, and

   (b)    whether any treatment and care relates to an injury caused by the accident under Schedule 2, cl 2(b) of the Act,

   the claimant was referred to Medical Assessor Thomas Rosenthal for determination of the dispute.

2. Medical Assessor Rosenthal certified on 10 March 2025 as follows:

The following treatment and care:

• Gabapentin;
• Norgesic;
• Metamucil; and
• Pulsed radio frequency of left spinal accessory nerves combined with Botox injections as recommended by Dr Trudi Richmond

RELATES TO THE INJURY caused by the motor accident.

The following treatment and care:

• Gabapentin; and
• Pulsed radio frequency of left spinal accessory nerves combined with Botox injections as recommended by Dr Trudi Richmond;

IS REASONABLE AND NECESSARY in the circumstances.

The following treatment and care:

• Norgesic; and
• Metamucil;

IS NOT REASONABLE AND NECESSARY in the circumstances.

OTHER ASSESSMENTS

1. Medical Assessor Abhishek Nagesh certified on 3 February 2025 as follows:

The following treatment and care:

• Medication Normison prescribed

RELATES TO THE INJURY caused by the motor accident.

The following treatment and care:

• Medication Normison prescribed

IS NOT REASONABLE AND NECESSARY in the circumstances.

1. Medical Assessor Shane Moloney certified on 2 April 2023 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:

• cervical spine – soft tissue injury; and
• left shoulder – referral of pain from the cervical spine.

Medical Assessor Moloney made no adjustment for pre-existing/subsequent impairments nor apportionment.

1. Medical Assessor Shane Moloney certified on 7 April 2023 as follows:

The following treatment and care:

• cervical spine – anterior cervical discectomy and disc replacement at C5/C6

DOES NOT RELATE TO THE INJURY caused by the motor accident.

The following treatment and care:

•  cervical spine – anterior cervical discectomy and disc replacement at C5/C6

IS NOT REASONABLE AND NECESSARY in the circumstances.

1. Medical Assessor Moloney considered that the claimant suffered a soft tissue injury to her cervical spine in the subject accident rather than facet joint and disc trauma. He found there is no evidence of any radiculopathy. For those reasons, he found that the proposed C5/C6 disc replacement surgery was not causally related to the subject accident.

2. Medical Assessor Moloney found that the proposed surgery was not reasonable and necessary in the absence of radiculopathy and the fact the initial MRI reported no disc bulge at C5/C6. Further, Medical Assessor Moloney thought that the claimant was not in a good psychological space to undertake the planned surgery.

3. Medical Assessor Ronald Gill certified on 30 August 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 14% and IS GREATER THAN 10%:

•  Major Depressive Disorder of moderate to severe intensity; and
• Exacerbation of Generalised Anxiety Disorder with features of somatisation and traumatisation.

Medical Assessor Gill noted that, while the claimant had a pre-existing psychiatric history of anxiety and trauma, these conditions were largely stabilised before the subject accident, which caused the onset of new depressive symptoms. Dr Gill did not think the claimant exhibited the full spectrum of symptoms for a diagnosis of post-traumatic stress disorder.

Utilising the Psychiatric Impairment Rating Scale, Medical Assessor Gill found 19% whole person impairment (WPI), from which he deducted 5% for pre-existing anxiety, resulting in a final WPI of 14%. It is not known if the insurer has sought a review of Medical Assessor Gill’s certificate.

THE REVIEW

1. The insurer sought a review of Medical Assessor Rosenthal’s certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relied on the particulars set out in the application and supporting documentation.

2. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and
   cl 34 of Procedural Direction PIC 7 (28 days).

3. The insurer submitted that Medical Assessor Rosenthal’s Certificate is affected by multiple material errors as follows:

   GROUND – Failure to provide adequate reasons and a proper path of reasoning

   (a)    Medical Assessor Rosenthal does not provide a path of reasoning in relation to his findings on diagnosis;

   (b)    Medical Assessor Rosenthal did not provide a diagnosis. He found that the subject accident resulted in “an injury to her cervical spine with referred pain to her left shoulder” but did not diagnose the injury to the cervical spine or the left shoulder;

   (c)    Medical Assessor Rosenthal said the claimant “may” suffer chronic neurotic pain or occipital neuralgia. He never said she did suffer those things. He did not diagnose;

   (d)    Medical Assessor Rosenthal did not say what caused the neuropathy. He did not identify any injury at any particular location;

   (e)    without a diagnosis, the reason for treatment is not clear. Without a diagnosis, the parties cannot comprehend the decision.

   (f)    the only relevant examination sign was carpal tunnel syndrome in the left hand. This is the only reference to a diagnosis. It is also the only reference to an injury, an injury location or an injured structure. However, Medical Assessor Rosenthal failed to say if it is related or unrelated to the subject accident. He also failed to say if the carpal tunnel syndrome was merely an incidental finding, and

   (g)    in relation to the left shoulder, Medical Assessor Rosenthal accepted reduced left shoulder movements, but he did not identify a diagnosis. He did not identify an injured shoulder structure. He did not identify the source or cause of pain that caused reduced left shoulder movements.

   GROUND – Failure to engage with relevant material

   (a)    the insurer says there is reasonable cause to suspect error in Medical Assessor Rosenthal’s engagement with the material before him;

   (b)    Medical Assessor Rosenthal failed to address causation, because he failed to identify a diagnosis resulting from the subject accident;

   (c)    Medical Assessor Rosenthal failed to provide adequate reasons as to why his findings were inconsistent with the material before him;

   (d)    specifically, the insurer says that Medical Assessor Rosenthal ignored the causation findings made by Medical Assessor Moloney, who diagnosed a soft tissue injury to the cervical spine and found that osteophyte formation was not causally related to the subject accident;

   (e)    while Medical Assessor Rosenthal clearly disagreed with Medical Assessor Moloney’s findings on causation, he failed to provide a clear path of reasoning as to why he disagreed or what he diagnosed instead of a soft tissue injury, and

   (f)    the insurer submits that Medical Assessor Rosenthal failed to provide an actual path of reasoning as to why his findings on causation differed from Medical Assessor Moloney. He therefore failed to address causation as it relates to the subject accident.

   Subsequent Accidents

   (a)    the insurer submitted that Medical Assessor Rosenthal obtained an incorrect history concerning the two subsequent motor accidents in which the claimant was involved. (See above). Medical Assessor Rosenthal recorded that the claimant “did not make any CTP claims for the two subsequent accidents” whereas a claim in fact was made arising from the 2021 accident, and

   (b)    the insurer says there is no explanation as to why Medical Assessor Rosenthal accepted the claimant’s incorrect history in the face of objective inconsistent evidence. The Medical Assessor did not comment on these inconsistencies. He failed to engage with this evidence. The insurer submitted this was a failure to comply with cl 6.41 of the Guidelines.

4. The insurer’s review application was opposed by the claimant on various grounds. It is not necessary to refer to those submissions in detail as they were not accepted by the President’s delegate. Briefly, the claimant submitted as follows:

   (a)    Medical Assessor Rosenthal made proper findings on diagnoses as he identified the root cause of the claimant’s chronic pain being an injury to the cervical spine with referred pain to her left shoulder. Additionally, he explained that “the symptoms described are not in a radicular pattern in the left arm but may represent chronic neuropathic pain. She may have developed occipital neuralgia”. As to Medical Assessor Moloney’s finding that the claimant’s injuries are soft tissue in nature, the claimant notes Medical Assessor Rosenthal’s observation that some of the nerve blocks have provided her relief, indicating there might be a source of nerve pain coming from the C5/C6 disc region;

   (b)    while the insurer alleges that Medical Assessor Rosenthal failed to provide a diagnosis, the claimant points to the claimant’s treaters who previously diagnosed her injuries, thus Medical Assessor Rosenthal had all the material available before him prior to reaching his conclusions;

   (c)    the claimant particularises the contemporaneous evidence from treatment providers which provides the diagnosis for which the claimant contends;

   (d)    Medical Assessor Rosenthal has then concluded that in his view, the ongoing symptoms in the claimant’s cervical spine and left arm are related to the subject accident, addressing the issue of causation;

   (e)    the claimant refutes the insurer’s submissions concerning mild carpal tunnel syndrome.

   (f)    in relation to the alleged failure to engage with relevant material, the claimant highlights that Medical Assessor Rosenthal adequately provided his reasons as to the relevance of the material before him, where he has taken all the contemporaneous evidence available into consideration;

   (g)    the claimant submitted that Medical Assessor Rosenthal was required to make his objective findings and reach his own conclusions. He was not required to provide an actual pathway of reasoning as to why his determination differed from that of Medical Assessor Moloney, and

   (h)    in relation to the subsequent accidents, concerning which the claimant was forthcoming, the claimant highlights that she has only been entitled to a common law damages application for the subject accident. The claimant further highlights that Medical Assessor Rosenthal was well aware of the subsequent accidents, given that they were raised in the insurer’s submissions and addressed by the Medical Assessor. The claimant denies that she provided any inconsistent history concerning her subsequent accidents.

5. The delegate of the PresidentStephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 8 May 2025 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that the Medical Assessor failed to put stated inconsistencies to the claimant concerning her two subsequent accidents and accepted the claimant’s incorrect history in the face of objective inconsistent evidence.

6. Accordingly, the review application was accepted and was referred to the Review Panel (Panel), which is to reassess the disputes referred to Medical Assessor Rosenthal, unless the parties otherwise agree.

7. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the the PIC Rules are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Causation of injury is addressed in the Guidelines as follows:

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

   6.6    Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

   Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.

   This, therefore, involves a medical decision and non-medical informed judgment.

   6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

1. See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

   [4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

2. Wright J then described the Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

   (1)    a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2)    a review of all relevant records available at the assessment;

   (3)    a comprehensive description of the injured person’s current symptoms;

   (4)    a careful and thorough physical examination;

   (5)    diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

REASONABLE AND NECESSARY IN THE CIRCUMSTANCES

1. The claimant is required to establish that the treatment and care is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the treatment and care is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment and care is “necessary”.

2. When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act1987 in Clampett v WorkCover Authority of NSW,[6] Grove J stated:[7]

   “22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ as relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ – (shorter Oxford English Dictionary, 3^rd Edition) and ‘that cannot be dispensed with’ – Macquarie.

   23.    The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what may be ‘reasonably necessary’, there is these statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”

   [6] [2003] NSWCA 52.

   [7] Clampett at (22) – (23), Meagher and Santow JJA agreeing.

3. Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[8]

   [8] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).

4. Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[9] They include:

   (a)    the appropriateness of particular treatments;

   (b)    the availability of alternative treatments;

   (c)    the costs of the treatment;

   (d)    the actual or potential effectiveness of the treatment, and

   (e)    the acceptance by medical experts of the treatment as being appropriate or likely to be effective.

   [9] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88).

5. Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.

6. The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.

7. 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”.

BUNDLES OF DOCUMENTS

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Panel has considered:

Document Name	Date	Page
Reply submissions made to President’s delegate (See previously)	28.04.2024	1 - 7
Submissions provided to Medical Assessor Rosenthal	22.10.2024	8 - 12

1. The claimant seeks a determination that the reimbursement for medication and pulse radio frequency and Botox injections is reasonable and necessary in the circumstances and relates to injuries arising from the subject accident. The claimant cites the following factors in support of that determination:

   (a)    the claimant sustained injuries to her neck, left arm, left hand, left shoulder and psychological injuries as a result of the accident. The claimant has been taking pain relief medication as a result of her accident-related injuries. She has been prescribed Gabapentin; Norgesic, Normison (Temazepam) and Metamucil by her treating medical practitioners to manage her chronic pain;

   (b)    as a result of the injury to her cervical spine, the claimant has been referred to undergo pulse radio frequency treatment with Botox injections by her general practitioner;

   (c)    the insurer denied the requested treatment as not being reasonable and necessary and/or relating to the injuries sustained in the accident without attempting to clarify why the treatment was required with the claimant’s treatment provider;

   (d)    with reference to the insurer’s internal review determination dated 3 November 2023, the claimant notes that the insurer decided as follows:

   (i)Diazepam, Temaze, Melatonin is not reasonable and necessary;

   (ii)the claimant’s prescriptions for Paracetamol, Gabapentin, Metamucil and Norgesic are considered unrelated to the claim, and therefore not reasonable and necessary, and

   (iii)the claimant’s prescription for Normison (Temazepam) is not causally related to the injuries from the subject accident and is therefore not reasonable and necessary.

   The claimant submits that each of those decisions is wrong and provides particulars in support of that submission.

   The claimant relies upon the reports of Dr Ashish Malkan (neurologist) dated 16 November 2020, the report of Dr Richard Hanney dated 22 November 2022 and the report of Dr Trudi Richmond (Pain Specialist) dated 23 March 2021. Dr Richmond opines that the motor accident resulted in an annular tear at C5/C6 and suggested Botox injections and radio frequency as the claimant wasn’t doing well with her pain.

Certificate and Reasons of Medical Assessor Rosenthal (see previously)	20.03.2025	13 – 21
Claimant’s bundle of documents in support of claim for Personal Injury Benefits	22.10.2024	22 – 244
Medical report of Dr Trudi Richmond	17.04.2025	245 – 248
Medical report of Dr Trudi Richard to claimant’s lawyers	15.01.2025	246 – 248

Detailed findings on physical examination

On examination, Ms Lombardo has reduced cervical spinal movement and limited range of movement of her shoulders secondary pain. She had reduced upper limb power secondary to pain and she had reduced light touch sensation on the left in the C6 dermatom.

Diagnosis

Ms Lombardo suffers from annular tear of C5/C6, occipital headaches and periscapular dysaesthesia with persistent trauma symptoms secondary to post-traumatic stress disorder and ongoing depression and anxiety caused by the motor accident.

Any pre-existing injuries that have been aggravated by the motor accident.

I do not believe Ms Lombardo had any pre-existing injuries. Prior to the accident, she worked as a nurse and was physically fit training in Muay Thai.

Whether you recommend any future treatment? If so, what type of treatment?

I have requested approval for Ms Lombardo to undergo pulse radio frequency of her spinal accessory nerve plus occipital nerves plus blocks and Botox injections (approximately $6,000 plus anaesthetics and hospital fees and costs of Botox of $500.00. She will require ongoing Analgesia, physiotherapy, exercise physiology, reviews with psychiatrists and potentially further TMS therapy. Ideally, she would benefit from participation in a multi-disciplinary pain management program approximate costs of $11,500.

Ms Lombard is significantly impacted by her pain. She requires assistance on family to look after her children and perform domestic activities of daily living. …… Ms Lombardo’s prognosis is extremely given her failure to improve both physically and psychologically.

1. The insurer relied upon the following material which the Panel has considered:

Doc	Document	Date	Page No.
A1	Insurer’s review application submissions (See previously)	03.04.2025	`1
A2	Decision of President’s delegate (See previously)	08.05.2025	8
43.	A3	Insurer’s reply submissions (treatment dispute)	13.11.2024	12

(a)    the insurer disputes that the accident caused a cervical spine disc injury and radiculopathy. The insurer relies upon Medical Assessor Moloney’s certificate dated 2 April 2023 relating to a WPI dispute;

(b)    the insurer also relies upon Medical Assessor Moloney’s certificate dated
7 April 2023 relating to a treatment dispute for funding of an anterior cervical discectomy and disc replacement at C5/C6. Medical Assessor Moloney certified that the surgery was not causally related to the subject accident;

(c)    Medical Assessor Moloney determined there was no radiculopathy at the time of his assessment. He accepted that disc changes could cause episodic radiculopathy, but it would not relate to the accident (insurer’s emphasis);

(d)    Radiologist, Dr John Korber confirmed that the post-accident MRI (dated
30 April 2020) showed no disc herniation or protrusion. He did not accept that radicular symptoms were caused by any disc herniation or disc protrusion;

(e)    the insurer submits that the disc morphology was normal immediately after the accident. Disc changes developed subsequently. Medical Assessor Moloney determined that those changes were not due to the accident. There was no nerve irritation at the time of Medical Assessor Moloney’s assessment. The insurer submitted that the evidence, and findings by Medical Assessor Moloney, conclude that any disc changes are not related to the subject accident;

(f)    the insurer then references a second motor vehicle accident in January 2021 in which the claimant suffered a lumbar spine injury which did not occur in the subject accident. The insurer also references a third motor vehicle accident in February 2022;

(g)    the insurer notes the claimant’s first complained of neurological symptoms in her right hand in March 2018, 13 months before the subject accident. The insurer submits there is no evidence of injury to the right wrist in the subject accident and no evidence that carpal tunnel syndrome is a consequence of the subject accident;

(h)    the insurer then states its reasons for refusing the various prescription medications that were requested (see previously), and

(i)    as to the requested pulse radio frequency treatment and Botox injections, the insurer submits:

(i)there is no basis for recommending nerve blocks in circumstances where there is no definitive signs of neurological irritation and the recent MRI finds no nerve involvement, and

(ii)the evidence to date concludes the subject accident only caused local soft tissue injury at the neck, and any neurological or chronic conditions are due to degenerative changes. Accordingly, the requested treatment is not causally related to the subject accident. It therefore cannot be reasonable and necessary.

A4	Medicare/PBS records	23.10.2022	20
A5	Certificate of Medical Assessor Shane Moloney (WPI dispute) (see previously)	02.04.2023	32
A6	Certificate of Medical Assessor Shane Moloney (treatment dispute) (see previously)	07.04.2023	41
A7	Extract of clinical records from Mount Druitt Medical Centre	As at 09.05.2023	50
A8	Ultrasound right wrist	28.07.2021	152
A9	MRI cervical spine and brachial plexus	12.01.2024	153
A10	Referral to Dr Farzan Bahin	13.12.2017	154
A11	CT lumbar spine	27.01.2021	155
A12	Report of Helen Soper, psychologist	28.09.2021	156
A13	Report of Dr Richard Hanney	17.08.2022	158
A14	Report of Luke McGrath, pharmacist	18.08.2023	159
A15	Report of Irean Baritakis, pharmacist	21.10.2022	174
A16	Insurer’s submissions in treatment dispute (surgery)	08.08.2022	190
44.	A17	MRI cervical spine	30.04.2020	195

Conclusion:

Normal MRI of cervical spine. No evidence of ligamentous injury and no nerve impingement is seen. No disc protrusion of disc prolapse.

45.     A18 CT cervical spine 01.05.2020 197

Conclusion:

No significant boney abnormality noted. No fracture evident. No disc herniation or nerve root compression demonstrated.

46.     A19 Report of Dr John Sheehy, consultant neurosurgeon 25.02.2022 199

Diagnosis of the injury she sustained in the initial injury is a soft tissue injury of the cervical spine. Her MRI scan shows the prominence of the C5/C6 disc with foraminal compromise on the left and reverse of the normal cervical lordosis at C5/C6. She sustained a soft tissue injury of the low back in the second motor vehicle accident. Her MR scan reveals loss of signal in the L4/L5 and L5/S1 discs and deep tears in the posterior wall of these two discs. There is no evidence of significant nerve root compression. Having reviewed the inherent requirements and job demands within the Sydney Children’s Hospital Network, she is unfit for undertaking these duties on a full-time basis as a consequence of her cervical injury. Her prognosis for improving with regard to cervical and low back injuries must be guarded.

A20	Surgery consultation record – Dr Natalie Cochrane	26.03.2018	206
47.	A21	Report of Dr Ashish Malkan, consultant neurologist, to Dr Cochrane	11.06.2020	212

A semi-trailer allegedly hit her car from behind and she sustained whiplash. She denies any loss of consciousness. She reported neck pain after the whiplash injury and reports intermittent paraesthesia and numbness radiating down the right hand typically the first three fingers. She also reports that sometimes, she drops objects from her left hand. She denies any sensory symptoms or weakness in lower limbs. She denies any bowel/bladder disturbance. She tells me that Lyrica helps her with the radiating pain. She is not back to work yet due to her current physical condition.

On examination tone and power are normal in upper and lower limbs. There is reduced pin prick in the left index finger and thumb with slightly suppressed brachioradialis reflex on the left side.

MRI scan of the cervical spine does not report any nerve root impingement or spinal cord compression. It shows disc bulge at C5/C6 level.

Clinically, it appears she has dynamic radicular symptoms possibly related to whiplash injury. I will go ahead and perform nerve conduction test and agree with your plan of continuing physiotherapy and Lyrica for optimal pain management.

48.     A22 Neurophysiology and electromyography report 10.08.2020 214

Conclusion:

The nerve conduction study is suggestive of mild right median nerve dysfunction at wrist. This is consistent with mild right carpal tunnel syndrome.

A23	Medial case conference records	23.07.2021	216
49.	A24	Reports of Dr Trudi Richmond	23.03.2021 16.04.2021 29.10.2021	224 226 228

Thank you for referring Ana-Louna for a review of her chronic pain….. Ana-Louna was involved in a motor accident in April 2020 which resulted in an annular tear at C5/C6. She has had physiotherapy and tried on different analgesics, but has had side effects limiting their use. Unfortunately, complicating all of this, she was involved in a second motor accident that resulted in low back pain, right hip pain and gluteal pain as well as right foot pain in January of this year.

On physical examination, she had quite restricted range of movement in her cervical spine as well as her shoulders….. She had wide-spread pain on palpation of her lower limb and restricted movements of her lumbar spine….. I have made the following suggestions:

(a)    I have started her on Norgesic to nocte and provided her with a script for 100 tablets;

(b)    continue psychology and she may warrant a psychiatrist referral;

(c)    I would like her to see one of our chronic pain physiotherapists;

(d)    she would benefit for participating in our introductory pain management program, and

(e)    I have requested repeat MRI of her cervical and lumbar spine.

Ana-Louna was reviewed on 16 April 2021 with the results of her scans. In her cervical spine, there is spondylosis at C5/C6 with uncovertebral joint disc osteophytosis resulting in narrowing of the left neural foramen and possible existing left C6 nerve root impingement. In the lumbar spine, there is loss of disc height at L4/L5 with a central annular fissure of 15mm and at L5/S1, there is loss of disc height and a posterior disc bulge with a abutment of the traversing S1 nerve root in the subitiular recess and abutment of the exiting L5 nerve root with mild bilateral facet joint arthropathy.

The prescribed Norgesic was helpful initially but now reports a burning sensation in her left trapezius. I have recommended increasing the Norgesic to twice daily and trialling it on a day when she is not driving….. We have discussed steroid injections and there is also the possibility of performing radio frequency to assist her. She is quite reluctant to try interventional procedure for her pain at this time.

Ana-Louna was reviewed today via Telehealth. She tells me she has been seen by Dr Kam who recommended a repeats steroid injection for her neck which was done about 2 weeks ago. This has so far not resulted in significant improvement in her pain. He has recommended against any surgery in the lumbar spine. Ana-Louna has ongoing neck pain, low back pain and foot pain.

I have discussed with her the following plan:

(a)    diagnostic medial brunch blocks at L5/S1 bilateral. This would be done to determine if some of her lumbar back pain was secondary to the facet joint arthropathy seen on imaging….. If these result in significant improvement in her back, I would then proceed to radio frequency ablation with a caudal epidural steroid injection;

(b)    to address the pain likely coming from the annular tear and this could be combined with the radio frequency procedure. If the diagnostic medial brunch blocks did not improve her pain, then I would proceed to perform the quartal by itself, and

(c)    continue on Gabapentin…. and duloxetine.

A25	Clinical records of Dr Natalie Cochrane	11.02.2021	230
A26	Clinical records of Dr Andrew Kam	15.09.2022	255
50.	A27	Report of Dr John Korber	21.11.2022	270

The claimant certainly would appear to have had significant symptoms which presented in a timely manner and were investigated multiple times. On the initial imaging, I do not think that the answer lies in the imaging. I do not think that the radicular symptoms were caused by any disc herniation or disc protrusion. There was also no obvious cervical spondylosis in the original imaging. There is an ongoing minor abnormality at C5/C6. Whether this is symptomatic or not, is a matter for clinical determination. It is possible that disc degeneration at C5/C6 could have been aggravated by the motor accident but this is also a matter for clinical determination. Until 2021, this is not observable by current methods of imaging.

It is reasonable that the claimant could have median nerve compressive neuropathy at the right wrist, but not accident related.

Dr Korber opines that the identified pathology is degenerative rather than traumatic in origin.

51.     A28 Insurer’s reply submissions (WPI dispute) 08.02.2023 277

(a)    the insurer submits that the third motor accident was not minor as the claimant’s GP recorded “……. rear ended by truck vehicle totalled”;

(b)    the insurer submits there is a clear overlap of the injuries the claimant alleges to have sustained in the subject accident and the third motor accident;

(c)    the insurer disputes that the subject accident caused disc damage at C5/C6. MRI imaging immediately after the accident did not find disc protrusion or annular fissures;

(d)    the insurer submits the radiology indicates that disc signs were first seen 26 days after the accident, and were not seen in an intervening MRI scan and CT scan that were performed during those 26 days. The insurer submits that this temporal gap indicates that there is no causal nexus between the accident and the MRI signs;

(e)    the insurer relies on the opinion of Dr Korber who confirms that the first MRI after the subject accident (MRI dated 30 April 2020) shows no focal disc herniation or disc protrusion. He does not accept that radicular symptoms were caused by any disc herniation or disc protrusion, and

(f)    the claimant submits that no cervical radiculopathy arises from the subject accident, but may be attributable to the claimant’s two subsequent motor vehicle accidents.

A29	Clinical records of Mount Druitt Medical Centre	As at 09.09.2022	283
52.	A30	Reports of Dr Peter Bentivoglio	19.08.2022 25.01.2023	456 469

Dr Bentivoglio assessed 5% WPI for the cervical spine which relates to the subject accident. He also assessed 5% WPI for the lumbar spine relating to the claimant’s second motor accident as well as degeneration and her work as a nurse. Dr Bentivoglio found no evidence of radiculopathy.

EXAMINATION REPORT

1. The report of Medical Assessor David Gorman is as follows:

   “Examination – MRP

   Ana-Louna Lombardo

   PIC Rooms, 1 Oxford St, Darlinghurst

   Assessor David Gorman

   12 August 2025

   Who attended the assessment

   Ms Lombardo attended unaccompanied.

   HISTORY

   Pre-accident medical history and relevant personal details

   Ms Lombardo is a 37 year old right handed female who lives with her two children aged 15 and 16 years.

   She is a non-smoker and does not drink alcohol.

   She was working as a paediatric Registered Nurse and Clinical Coordinator.

   She stopped work for a period after the subject accident then took on some supervisory work at the Children’s Hospital Westmead with reduced hours and changed role until January 2021 (after a second accident on 23 April 2020). She stopped work then as a lower back injury was an additional injury caused by the second accident.

   She reported a pre-existing psychological condition caused by domestic abuse.

   She has thalassaemia but no pre-existing accidents or injuries prior to 2020.

   She is now medically retired and is receiving income protection insurer payments.

   History of the motor accident

   The subject accident occurred on 23 April 2020. She was driving a VW Tiguan with her seatbelt on. She was stopped in traffic when she was hit by a truck from behind and pushed into the car in front. No airbags went off. Police were across the road and came to assist. She initially went home. Her car was towed away and written off.

   History of symptoms and treatment following the motor accident

   She waited one week before attending Nepean Hospital. She developed neck pain and left arm symptoms. At Nepean Hospital, she had a CT scan due to her neck pain and left arm symptoms and was then referred to a neurologist, Dr Malkan. She was diagnosed with whiplash and carpal tunnel syndrome in her left hand.

   She was referred to Dr Kam, a neurosurgeon He determined that she had a cervical spine injury. He diagnosed an annular tear in a cervical disc. He initially recommended surgery but this was declined by the insurer.

   She had physiotherapy and medications and then two cortisone injections into her cervical spine. These injections gave her some short term relief.

   She deteriorated psychologically during this period. She was admitted to St John of God, a private psychiatric hospital.

   She was referred to Dr Trudi Richmond, a pain management specialist. Dr Richmond first saw Ms Lombardo on 23 March 2021 which was after her second motor vehicle accident. She noted ongoing symptoms of trauma related to the subject accident. There were restricted lumbar spinal movements also present as well as restricted neck movements.

   She has had three nerve blocks of the left spinal accessory nerve which have given her some short term relief. She was getting left shoulder pain and spasms. The insurer, however, only funded the first block.

   The request from Dr Trudi Richmond dated 21 August 2024 was noted for pulsed radiofrequency and Botox which was declined by the insurer.

   Ms Lombardo reported that she had a recent local anaesthetic block of the spinal accessory which helped. This was 1 month before the assessment. She now has had 3 such injections each of which helped for a limited time. The pulsed radio-frequency block is to extend the period of benefit.

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

   On 8 January 2021, she was dropping her children off at school and was hit from behind by another vehicle whilst driving her vehicle. The symptoms in her neck increased and she also developed low back pain. She said the same treatment, however, continued on the neck and arm which she then said remained unchanged.

   A third motor vehicle accident occurred on 2 February 2022. She was driving her car again when she was struck from behind. She said this only caused minor damage to the vehicle and there was no particular change in her neck injury symptoms.

   Current symptoms

   She has ongoing symptoms in her neck and left arm. The pain is over the posterior neck and radiates to the left scapula as well as to the anterior left shoulder.

   The pain can then radiate down the left arm to the hand – it mainly affects the 1^st, 2^nd and 3^rd fingers on the left.

   The children are helping with household chores. She gets shopping delivered. She does minimal cooking. She only drives very short distances. Her mother and sister help with cooking and cleaning as well.

   Current and proposed treatment

   She was attending physiotherapy but she has stopped.

   She takes Gabapentin tds (300/300/600) which is helping the symptoms.

   She takes Norgesic 1-2 three times a day.

   She takes Metamucil due to side-effects of her other medication.

   She also takes moclobamide, Seroquel and Lamotrigine for psychological issues and sees a psychologist and psychiatrist – this is funded by the insurer.

   In terms of recommended treatment, Dr Richmond has recommended pulsed radiofrequency and Botox and she has been told the treatment could give her up to one year of relief.

   CLINICAL EXAMINATION

   General presentation

   She was very flat in affect with a soft voice and a sad expression.

   She weighed 54.8kg. She was 157cm tall.

   Cervical spine

   Examination of her neck revealed some tenderness but no spasm or guarding. She was tender in her left upper trapezius and there was palpable muscle spasm with tender firm areas in the trapezius.

   Right rotation was reduced by to 1/3 normal. Left rotation was reduced to 2/3 normal and neck flexion was also reduced to 2/3. Extension was reduced to 2/3 normal. She had asymmetry of neck movement.

   There was some abnormal sensation in the 1^st, 2^nd and 3^rd fingers on the left but no motor weakness. Reflexes were normal.

   Upper extremities

   Left shoulder movement elevation was to 140 degrees. Other movements were normal The left shoulder can “lock” on occasions when elevated.

   Comments on consistency

   There were no signs of embellishment or exaggeration on her presentation and no evidence of any inconsistency.

   Summary of relevant radiological and medical imaging and other investigations

   An MRI of the cervical spine dated 19 May 2020 concluded: “Small central disc protrusion at C5/6 with a small annular fissure without significant neural compression or foraminal narrowing.”

   An MRI of the cervical and lumbosacral spine dated 28 March 2021 concluded: “Within the cervical spine there is mild left-sided cervical spondylosis at the C5/6 level which results in mild narrowing of the neural foramen and possible left exiting C5 nerve root impingement which would account for patient’s symptoms. Within the lumbosacral spine, there is L5/S1 and L4/5 disc degenerative change with possible far lateral impingement of the exiting left L5 nerve root secondary to the circumferential disc bulge at the L5/S1 level.”

   Dr Malkan’s report, consultant neurologist, dated 11 June 2020 concluded: “Clinically, it appears she has dynamic radicular symptoms possibly related to whiplash injury.” He did subsequent nerve conduction studies on 10 August 2020 which showed evidence of carpal tunnel syndrome and concluded: “The nerve conduction studies suggest a mild right median nerve dysfunction at wrist. This is consistent with mild right carpal tunnel syndrome.”

   DETERMINATIONS

   Treatment and Care

   Causation

   Ms Lombardo was involved in a motor vehicle accident on 23 April 2020 which resulted in an injury to her cervical spine with referred pain to her left shoulder. She has developed ongoing symptoms of chronic pain persisting in her neck and left arm.

   Thus, the treatments recommended are all causally related to the subject accident - the Gabapentin, Norgesic and Metamucil medications and the pulsed radiofrequency of left spinal accessory nerves combined with Botox injection.

   The Panel notes Assessor Moloney diagnosed soft tissue injury to the cervical spine with no evidence of radiculopathy. Dr Korber (Radiologist) did not diagnose disc rupture. However, a soft tissue injury can cause referred pain and muscle spasm to the shoulder girdle and arm (non-verifiable radicular symptoms). This can lead to the muscle spasm treated by the blocks performed. Therefore, the motor vehicle injury relates to the proposed treatments.Treatment and Care – reasonable and necessary

   Gabapentin is a recognised treatment for neuropathic pain and is reportedly giving her some relief. Some of her symptoms are due to neuropathic pain and thus this treatment is reasonable and necessary.

   Norgesic is an analgesic which is providing some relief. It is a non-opioid analgesic and is appropriate to continue. It is reasonable and necessary.

   Metamucil is reported to be treating the side-effect (constipation) from her medications for the physical and psychological effects of the accident – it is reasonable and necessary.

   The Spinal Accessory Nerve originates from cervical spinal roots C1–C5 before ascending and exiting via the jugular foramen. It innervates sternocleidomastoid (head rotation and flexion) and trapezius (shoulder elevation and scapular movement). It carries proprioceptive and motor fibers; sensory blockade can modulate pain arising from muscle spasm or myofascial trigger points.

   The indications for radio-frequency blockade are -

   ·Chronic myofascial pain in the trapezius or sternocleidomastoid not responding to conservative therapies.

   ·Refractory cervicogenic headache linked to upper cervical musculature.

   ·Patients who demonstrate ≥50% temporary relief with diagnostic nerve blocks.

   Her pain does relate to muscle spasm in the trapezius. She reported some improvement with previous cortisone injections and nerve blocks to the spinal accessory.

   The pulsed radio-frequency treatment will result in longer term benefit by blocking nerve impulses for 6-12 months, much longer than the local anaesthetic and steroid injections.

   The Botox treatment will benefit by muscle relaxation in the symptomatic spasming muscle in the trapezius and left side of the neck.

   To support this treatment is not to imply disagreement with Assessor Moloney’s assessment that there is no nerve injury in the cervical spine – there is no nerve injury but it is referred pain the left shoulder girdle causing symptoms treated by the Botox and radiofrequency lesioning. The treatment is for symptoms secondary to the soft tissue cervical spinal injury which has caused referred pain to the left trapezius, neck and shoulder girdle.

   CONCLUSION

   The following treatment and care relates to the injuries caused by the motor accident:

   ·Gabapentin

   ·Norgesic

   ·Metamucil

   ·Pulsed radiofrequency of left spinal accessory nerves combined with Botox injections as recommended by Dr Trudi Richmond.

   The following treatment and care is reasonable and necessary in the circumstances:

   ·Gabapentin

   ·Norgesic

   ·Metamucil

   ·Pulsed radiofrequency of left spinal accessory nerves combined with Botox injections as recommended by Dr Trudi Richmond.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[10] The Panel adopts the examination findings and reasons of Medical Assessor Gorman with which Medical Assessor Couch agrees.

   [10] Section 7.26(6) of the Act.

2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[11]

   [11] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

3. The Panel reconvened on 25 August 2025 to consider its findings and conclude its determination. The Medical Assessors have explained the basis for their assessments and findings. The Panel wishes to add the following reasons.

4. Local anaesthetic blocks have helped the pain without causing major shoulder weakness. The treatment is for the muscle spasm of the trapezius caused by the cervical spinal injury. Hence, it does not contradict the view of Medical Assessor Moloney that there is no nerve injury in the cervical spine. As stated by the Medical Assessors, there is no nerve injury, but there is referred pain to the left shoulder girdle, causing symptoms to be treated by the Botox injection and radio frequency lesioning. The Panel is not saying that the spinal accessory nerve is injured. The Panel is saying that by blocking it, the symptoms of muscle spasm, caused by the soft tissue cervical spinal injury diagnosed by Medical Assessor Moloney, should be relieved.

CONCLUSION

1. For the above reasons, the Panel concludes the certificate dated 10 March 2025 as to Causation of Treatment and Care should be confirmed.

2. For the above reasons, the Panel concludes the certificate dated 10 March 2025 as to Reasonable and Necessary Treatment and Care should be revoked. The new certificate appears at the commencement of these reasons.