Allianz Australia Insurance Limited v Mataraci

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Mataraci [2025] NSWPICMP 536
CLAIMANT:	Derya Mataraci
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Bianca Montgomery-Hribar
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Rhys Gray
DATE OF DECISION:	23 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); treatment and care dispute; pre-existing lower back pain and diagnosis of multiple sclerosis; whether post-accident symptoms resulted from injuries caused by accident; whether treatment and care reasonable and necessary given nature of injuries caused by accident; Held – the accident was the cause of, or made a material contribution to, the need for the surgery; extensive conservative treatment regime failed to relieve symptoms; the treatment and care is reasonable and necessary in the circumstances and relates to injury caused by the accident; MAC confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Wallace dated 4 November 2024.

STATEMENT OF REASONS

INTRODUCTION

Derya Mataraci (claimant) was involved in a motor vehicle accident on 12 February 2022 when the vehicle she was driving collided with a car that failed to give way at a stop sign (accident).
Allianz Australia Insurance Limited (insurer) has admitted liability for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (MAI Act).
The insurer has denied the claimant’s treatment and care request for a posterior L5/S1 decompression and fusion surgery (the surgery). The claimant sought review of this decision by the Personal Injury Commission (Commission). The issue in dispute is whether the surgery is reasonable and necessary in the circumstances and related to the injury caused by the accident.
The dispute was referred to Medical Assessor Raymond Francis Wallace. By certificate dated 4 November 2024, Medical Assessor Wallace determined that the surgery was related to injuries sustained in the accident and was reasonable and necessary in the circumstances.
The insurer lodged an application with the Commission seeking a review of the decision of Medical Assessor Wallace under s 7.26 of the MAI Act.
On 4 December 2024, a delegate of the President determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the application to a review panel.
This review panel (the Panel) has been constituted to conduct a review of Medical Assessor Wallace’s certificate dated 4 November 2024 (Review). The Panel is required to determine whether the disputed treatment and care meets the statutory requirements of causation and reasonableness under the MAI Act.

LEGISLATIVE FRAMEWORK

Treatment and care

The MAI Act governs the claimant’s claim and entitlements to benefits and compensation. Statutory benefits are payable by the insurer in accordance with Part 3 of the MAI Act.
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care and provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
…
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) The Motor Accident Guidelines may provide for—
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).”
Note—
See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary.
Relevantly, s 3.24(2) 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 sub-cl 2 (b) of Schedule 2 of the MAI Act which defines a medical assessment matter as “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
It is noted that the Motor Accident Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. Version 9.3 of the Guidelines is effective from 6 December 2024. For accidents such as the current accident, specific clauses from version 9 of the Guidelines continue to apply. The Guidelines do not provide for the circumstances contemplated in s 3.24(2).
There is no dispute that the surgery falls within the definition of “treatment and care” for the purposes of the MAI Act.
The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining causation.[1] It is therefore necessary for the Panel to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[2]
[1] Sections 5D and 5E CL Act.
[2] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].

Review procedure

Part 7 of the MAI Act provides for the resolution of disputes that arise in respect of motor accident claims. Section 7.1 defines a medical assessment matter as “a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part”.
Pursuant to sch 2 cl 2(b), whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care) is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act, at first instance by a Medical Assessor,[3] and on review by a review panel.[4]
[3] Section 7.20, MAI Act.
[4] Section 7.26, MAI Act.
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors, being specialist medical practitioners, and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. The Panel is required to form its own opinion on the medical question in dispute by applying its medical expertise and experience; it is not to choose between competing opinions, nor to assess the correctness of such opinions.[5]
[5] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2012] HCA 43 at [47]; Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.

ASSESSMENT UNDER REVIEW

Medical Assessor Wallace examined the claimant on 29 October 2024 and issued a certificate dated 4 November 2024. The Medical Assessor certified that the treatment and care, being posterior L5/S1 decompression and fusion surgery, related to the injury caused by the motor accident and is reasonable and necessary in the circumstances.
Medical Assessor Wallace examined the claimant in person. In respect of history, it was acknowledged that she had a history of episodic lumbar spinal pain requiring review with her local medical officer but no treatment. She had also been referred for physiotherapy and chiropractic treatment relief of her symptoms related to multiple sclerosis (MS), which was diagnosed in 2009.
The Medical Assessor noted that the surgery had been proposed by two qualified neurosurgeons and a neurologist. The Medical Assessor undertook a clinical examination of the claimant as well as summarised relevant documentation, radiological and medical imaging, and other investigations such as previous bone scans.
In terms of diagnosis, Medical Assessor Wallace concluded that the claimant suffered an injury at her lumbar spine as a direct result of the accident. The Medical Assessor found she had no evidence of right L5 radiculopathy prior to the accident, however found evidence of right L5 radiculopathy on investigations carried out post-accident and at the time of his clinical examination. The Medical Assessor therefore opined that the request for the surgery relates to the injury caused by the accident.
The Medical Assessor opined that the surgery is reasonable and necessary in the circumstances, noting the claimant was some two and a half years post injury with significant ongoing pain at her right leg consistent with right L5 radiculopathy. The claimant had undergone a comprehensive conservative treatment regime which had failed to relieve her right leg symptoms. The Medical Assessor considered the surgery has a good prognosis for significant relief of her right lower limb symptoms.

PROCEDURAL HISTORY

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: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.
The Panel issued two directions to the parties dated 9 December 2024 and 13 March 2025 requiring the parties to upload bundles of documents relevant to the Review and advising the parties of the medical examination date. In respect of the medical examination, the Panel directed the claimant to bring copies of all CT scans, MRIs and X-rays of her injuries.
In its consideration of the documents, the Panel noted that the insurer had approved the surgery on a “without prejudice” basis on 15 November 2024.
On 17 March 2025, the Panel held a preliminary conference with the parties. The parties confirmed that the surgery had been approved on a “without prejudice" basis and the surgery had been performed. In the circumstances, the Panel directed the parties to provide submissions on the utility of proceeding with the Review.
Following receipt and consideration of the parties’ submissions, the Panel determined that the Review should proceed given there remained a dispute between the parties as to whether the surgery relates to an injury caused by the accident pursuant to s 3.24 of the MAI Act. This dispute is a medical assessment matter pursuant to sch 2 cl 2(b) of the MAI Act as it regards “treatment and care provided”.
The claimant provided the outstanding radiological imaging reports on 10 April 2025, but did not provide the imaging studies. On 16 April 2025, the insurer made written submissions to the Panel via the Personal Injury Commission MyPathway system (Portal) regarding these documents. Also on 16 April 2025, the claimant made written submissions in reply to the Panel via the Portal.
On 17 April 2025, the Panel made further directions for the production of the imaging studies undertaken pre-accident.
On 20 May 2025, the claimant provided the requested imaging studies, along with an additional expert report of Associate Professor Ali Ghahreman dated 6 May 2025.
The report of Associate Professor Ghahreman dated 6 May 2025 was not lodged in accordance with a direction of the Panel and was lodged after the medical examination of the claimant. Accordingly, it did not comply with rules 67(1)(b)(ii) and 67C(5) of the PIC Rules.
The Panel provided the insurer with an opportunity to make submissions on whether leave should be given to the claimant to rely on the report. On 6 June 2025, the insurer confirmed that it consented to the inclusion of the report.
Noting the position of the insurer, the Panel has considered the report of Associate Professor Ghahreman dated 6 May 2025 for the purposes of its Review.

EVIDENCE BEFORE THE REVIEW PANEL

The Panel has considered the Joint Review Bundle filed by the parties.
On 10 April 2025, in accordance with a direction from the Panel, the claimant provided a bundle of pre-accident radiology reports and on 20 May 2025, provided the pre-accident imaging studies. These documents have also been considered and evaluated by the Panel.

Application for personal injury benefits

The claimant made an application for personal injury benefits dated 20 February 2022. She describes her injuries as “lower right back, crawled all the way up to my neck after 2 hours, right ear, right wrist, right ankle, foot, bruises on thighs, left knee bruise, swollen wrist ankle & foot, severe chest pains on the Tuesday shoulder, headaches” [sic].
In response to the question of “Were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident”, the claimant ticked “No”. In terms of her employment details, the claimant noted she was on a disability pension.

Relevant pre-accident treating records

The Panel notes that there are extensive medical records addressing the claimant’s physical injuries. The Panel has read and evaluated the entirety of the medical records and notes that only a select summary is provided below.

Dr Bruce Brew

On 14 January 2010, the claimant attended on Dr Bruce Brew, neurologist. Dr Brew opined that the claimant had an isolated seizure and, at this stage, only required a progress EEG. It was noted that since the seizure in October 2009, the claimant has had anxiety episodes characterised by periods of difficulty breathing.
On 7 March 2016, the claimant attended on Dr Brew. Dr Brew’s report records that the claimant gave a history of having developed numbness in the right great toe spreading to the sole of the foot. The day prior to the development of these symptoms, the claimant reported experiencing sudden pain in the lower central back after bending over. She described similar symptoms having subsequently developed in the left foot. Dr Brew noted an MRI scan of the lumbosacral spine revealed minor degenerative changes and examination revealed mild limitation of back movements but no definite neurological signs.
On 31 July 2017, Dr Brew provided a letter confirming that he is the neurologist involved in the care of the claimant, who has MS and has recently started fingolimod. Dr Brew reports that her only symptom is intermittent numbness of the left thumb and index finger, which is improving. There is reported to also be a history of migraine and seizures which have been well controlled on Lamictal.
On 12 June 2018, the claimant attended upon Dr Brew. Dr Brew noted that the claimant’s pins and needles in her left thumb remains and now she has noticed similar sensations in the left index finger involving the distal phalanx and an aching throughout the left arm.
On 23 July 2018, the claimant again attended upon Dr Brew. It was noted that progress MRI brain and spine scans have shown some progression of her MS though none of the lesions are active.
The notes of Dr Brew at the St Vincent’s Hospital neurology clinic have been considered, which evidenced regular attendance by the claimant.

Dr Jane Standen

The claimant attended upon Dr Jane Standen, Sydney Pain Specialists, on 15 October 2020. Under “Impressions”, Dr Standen notes the claimant describes persistent multi-site pain in association with a provisional diagnosis of MS, and that the claimant has a provisional diagnosis of generalised anxiety disorder. It was recorded that “today in consultation describes unhelpful thoughts in relation to pain in particular pain catastrophisation”.
Dr Standen noted that the claimant’s understanding was her MS was in remission. The claimant’s pain is said to involve her upper limbs, lower limbs, lumbar spine and headaches. She noted “her bones feel like they are rotting”, describing generalised “aches and pains”, a burning pain to the soles of her feet, and headaches waking her due to their severity. It was noted that the claimant manages her pain with visits to her chiropractor, manipulation, and oral analgesia. She had recently commenced regular gabapentin. Dr Standen provided a multimodal and multidisciplinary pain management plan.

HausCorp

The claimant first attended upon Dr Georgina Choueifati, chiropractor, at HausCorp on
8 April 2019 complaining of lower back pain. Records provided by HausCorp note the claimant’s attendance on Dr Choueifati on 23 occasions between 8 April 2019 and 14 April 2021. During this time, she was treated for back pain and, on occasion, also for knee pain. She was diagnosed with L5 disc prolapse, thoracic dysfunction and lumbar disc bulge.

Clinical notes of City West Medical Centre

The progress notes of City West Medical Centre (CWMC) collated on 10 March 2022, 12 July 2022 and 8 June 2023 have been considered. The earliest record is dated 17 July 2008. A short summary of relevant entries is set out below, noting that not all relevant entries are summarised:
(a)    on 9 February 2009, it was noted that the claimant reported she had neck pain the prior night and was feeling stiff. It was noted “tender C7 to upper thoracic”;
(b)    on 30 January 2010 and 16 February 2010, the claimant complained of right hip pain following a lumbar puncture that was undertaken in 2009. A background history of chronic lower back pain was noted;
(c)    on 12 February 2010, the claimant noted muscle spasm on right side of her neck;
(d)    on 2 March 2010, the claimant reported back pain;
(e)    on 30 June 2010, severe back pain and pain in left leg was noted. It was recorded the claimant had a history of back injury. A CT of the lumbar spine was requested;
(f)    on 6 April 2011 the claimant complained of ongoing lower back pain and stiffness, associated weakness and poor mobility;
(g)    on 17 October 2012, the claimant reported neck pain and noted she had arranged a cervical CT and abdominal ultrasound examination. The notes record “Explained that CT scan has high dose radiation, she had previous disc bulges in lumbar area, management plan will not significantly change at this stage even if she has disc bulge. She insists to continue with the CT…”;
(h)    on 19 October 2012, it is recorded that the claimant was advised on her cervical spine CT result. Ongoing neck pain was recorded;
(i)    on 9 January 2014, the records note “? In process of diagnosing with MS”;
(j)    on 9 April 2014, the claimant reported loin pain for two days;
(k)    on 23 June 2015, the claimant reported “knee pain for few months”;
(l)    on 27 February 2016, the claimant gave a one-week history of lower back pain, and complained of pins and needles in both feet. She was referred to Mr Vijay Mallisety;
(m)     on 1 March 2016, the claimant complained of lower back pain and was referred to Dr Burak Dinc;
(n)    on 4 March 2016, the claimant reported ongoing lower back pain with bilateral paraesthesia of the feet. An MRI of the lumbar spine was requested;
(o)    on 11 January 2017, the claimant reported having lower back pain and requested referral to a chiropractor. The claimant was again referred to Dr Dinc;
(p)    on 13 June 2017, the claimant reported paraesthesia on the side of her neck with irritation;
(q)    on 15 June 2017, the claimant reported numbness with irritation on the side of her neck and reported she was seeing a neurologist the next day;
(r)    on 6 July 2017, it was recorded that the claimant was recently diagnosed with MS. The claimant reported lower back pain and “a bit muscular pain left upper back, o/e muscular tenderness only” and that she was seeing Dr Dinc for chiropractic treatment;
(s)    on 24 January 2018, the claimant reported lower neck pain;
(t)    on 29 May 2018, it was noted that the claimant was diagnosed with MS approximately one year ago and was requesting a referral to Dr Hutchinson for a second opinion;
(u)    on 5 July 2018, the claimant reported neck pain. She was prescribed Endone 5mg;
(v)    on 24 December 2018, it is noted “chronic pain, has neck pain rt side”. Endone 5mg was prescribed;
(w)   on 4 January 2019, the claimant complained of an aggravation of lower back pain and requested a referral to a chiropractor;
(x)    on 27 August 2019, the claimant reported a bilateral burning sensation in both feet;
(y)    on 28 October 2019, the claimant reported upper back pain for a few days;
(z)    on 25 November 2019, the claimant reported having back and neck pain. Endone 5mg was prescribed;
(aa)    on 16 December 2019, the claimant reported an acute exacerbation of back pain with restricted range of motion noted on examination. Endone 5mg was prescribed;
(bb)    on 13 January 2020, the claimant reported back pain. Endone 5mg was prescribed;
(cc)     on 10 March 2020, the claimant reported chronic pain. Endone 5mg was prescribed;
(dd)    on 20 May 2020, the claimant reported back and neck pain. Endone 5mg was prescribed;
(ee)    on 12 June 2020, the claimant was informed that she needed to see a specialist for ongoing scripts of Endone;
(ff)    on 23 June 2020, the claimant reported ongoing pain in her neck and noted she had an appointment with a specialist in July;
(gg)    on 7 July 2020, the claimant reported she still had neck pain;
(hh)    on 20 July 2020, the claimant reported neck pain for two days;
(ii)    on 3 August 2020, the claimant reported chronic pain, back pain and neck pain. It was noted she had an appointment with a pain specialist at the end of the month. Endone 5mg was prescribed;
(jj)    on 9 September 2020, it was noted that the claimant was taking Gabapentin 100mg as recommended by her neurologist;
(kk)     on 10 September 2020, the claimant requested Endone as she could not sleep the previous night due to pain. She was referred to Dr Jane Standen, pain specialist;
(ll)    on 5 January 2021, the claimant reported shaky legs twice for a few seconds two days prior;
(mm) on 8 February 2021, the claimant noted she had ongoing symptoms and was waiting to get medical cannabis;
(nn)    on 12 February 2021, the claimant reported shoulder pain for five days which becomes worse with movement;
(oo)    on 13 February 2021, the claimant presented with shoulder pain;
(pp)    on 29 March 2021, it was noted the claimant had a recent MRI with a neurologist. Her MS was noted to be stable;
(qq)    on 18 May 2021, the claimant reported back and neck pain with joint stiffness;
(rr)   on 6 July 2021, the claimant reported ongoing pain;
(ss)     on 8 September 2021, the claimant reported chronic pain;
(tt)    on 9 October 2021, the claimant reported chronic pain that was affecting her daily activities;
(uu)    on 18 November 2021, the claimant reported an acute exacerbation of chronic back pain. Endone 5mg, Nurofen Plus 200mg and Gabapentin 600mg was prescribed;
(vv)     on 10 January 2022, the claimant requested a supportive letter to NDIS. It was noted that her MS symptoms had increased. She reported muscle stiffness and needing assistance with most physical activities;
(ww) on 4 February 2022, the claimant presented with severe pain in her right shoulder for one week as a result of holding heavy bags. The pain was reported as 10/10 and she was not able to move her shoulder and was unable to sleep the prior night due to pain. An ultrasound of the claimant’s right shoulder was requested, and
(xx)     on 5 February 2022, the claimant reported she was in a lot of pain which was not relieved by Endone. An ultrasound guided cortisone injection in the right shoulder was requested.

Medical imaging

Pre-accident medical imaging records were provided, which have been considered.
On 17 October 2012, a CT of the cervical spine and ultrasound of the abdominal wall was performed. The CT concluded minor cervical spine degenerative changes with no significant central canal narrowing, and foraminal narrowing at the left C3/4 level which could potentially irritate the left C4 nerve root.
On 16 July 2013, an MRI of the brain and whole spine was performed which revealed minor degenerative changes in the cervical spine and disc bulging at L5/S1.
On 4 March 2016, an MRI of the lumbosacral spine was undertaken. This showed mild disc space loss at L5/S1, shallow left paracentral disc protrusion and disc bulging. The disc bulging displaces the fat planes anterior to the exiting right L5 nerve with potential impingement.
On 13 July 2016, an MRI of the lumbar spine shows evidence of a disc bulge at the L5/S1 level. The changes at L5/S1 were not marked and without focal nerve root impingement.
On 16 July 2018, an MRI of the cervical and thoracic spine was undertaken. There were two new plaques noted in the spinal cord.
On 19 June 2017, an MRI of the brain and cervical cord was undertaken. The findings were suggestive of demyelinating disorder with distribution in the cervical cord and brain.
On 19 January 2019, an MRI of the spine with and without contrast was undertaken. This noted plaques in the cervical cord at the level of C2 superior endplate involving the lateral cord, and a subtle area of abnormality at the level of T5 involving the anterior and right lateral cord. This concluded that the findings were similar to the scans performed on 16 July 2018.
On 3 September 2019, an MRI of the brain and MRI of the cervical and thoracic spine was undertaken. Mild disc bulges at C3/4, C4/5 and C5/6 were noted. The MRIs were performed to examine the progress of her MS and concluded stable burden of the disease within the brain and cord.
On 21 March 2021, an MRI of the brain and cervical spine (with and without contrast) was performed. This showed plaque at C2, C4, T7 and T8, and lesions at T2 and T5. It was concluded that the claimant’s disease was stable with no new plaques and no active plaques.
On 17 October 2021, a CT of the cervical spine was performed. Minor C spine degenerative changes were noted.

Post-accident treating records

Ambulance report

The NSW Ambulance Report dated 12 February 2022 was considered. This reports the claimant self-extricated from the vehicle after the accident. The claimant initially did not present as an injured person then presented with lumbar back pain. She is reported to have walked to the ambulance. The report relevantly notes “Nil c-spine tenderness, pain to thoracic region on palpation, lumbar back pain on palpation, sacral back pain. On palpation of lumbar / sacral region c/o shooting pain down R leg”.
The secondary survey notes her right leg had altered sensation with tingling, and shooting and tingling on palpation of the lumbar sacral region. The lumbar spine pain, sacral spine pain and thoracic spine pain was described as aching and radiating to her right leg, aggravated by palpation.

Auburn Hospital

The claimant was transported to Auburn Hospital via ambulance following the accident. She was discharged at 4am the following morning.
The Discharge Summary from Auburn Hospital dated 13 February 2022 noted the claimant reported some right buttock pain, pain and tingling/numbness creeping from the lumbar spine up to the thoracic spine and moving to the cervical spine.
In respect of the secondary survey, the Discharge Summary relevantly noted “mid cervical midline tenderness” in respect of her neck, and “nil deformities or pain on palpation. Able to actively move” both upper and lower limbs. In respect of her back, it is noted “focal midline tenderness L3 + S2 – R lateral buttock pain above iliac crest?”
A CT of the cervical spine showed no fracture.

Commission Medical Assessment

On 16 December 2022, the claimant was assessed by Medical Assessor Philip Truskett. In a certificate dated 30 December 2022, Medical Assessor Truskett certified that the injuries caused by the accident of cervical spine soft tissue injury, lumbar spine soft tissue injury and right buttock soft tissue injury is each a minor injury for the purposes of the MAI Act.
In his diagnosis, the Medical Assessor noted that the claimant has MS involving her brain and spinal cord. She has a longstanding history of neck and back pain. Her neck and back pain have been aggravated and her right buttock pain has developed. There is tendonitis demonstrated on an MRI scan of her insertion of gluteus minimus, but no tendinous tear to her buttocks and no evidence of radiculopathy in either upper or lower limbs.

Dr Bruce Brew

On 16 August 2022, the claimant attended upon Dr Brew. It was noted that an MRI report of the lumbosacral spine showed a disc at L5/S1 on the right which seems to have developed and which is irritating the L5 nerve root. Dr Brew stated he is “strongly suspicious that this is a dominant driver for her pain”.
On 13 September 2022 the claimant attended on Dr Brew. Dr Brew reported that the claimant complained of pain and numbness in both buttocks. She noted some improvement with a peri radicular block at L5 but there had since been worsening of her pain. He assumed it is further disc herniation and has arranged for her to have Predinsone by mouth.
On 31 October 2022, the claimant attended on Dr Brew. Dr Brew reported to the claimant’s GP that the L5/S1 periradicular nerve block had not led to any improvement. The claimant continued to complain of severe pain from lower back into right buttock, anterior thigh, shin and dorsum of the right foot with occasional left sided symptoms. There were no changes on examination and Dr Brew recommended review by Dr Pope as more conservative measures had failed.
Also on 31 October 2022, Dr Brew wrote a letter to Dr Pope noting that the pain in the claimant’s low back going into the right leg had not responded to conservative measures, and referred to MRI imaging from August showing a disc at L5/S1 on the right encroaching the foramen.

Dr Raoul Pope

On 18 May 2022, the claimant attended upon Dr Raoul Pope, neurosurgeon. Dr Pope noted the claimant was in receipt of the Disability Support Pension for MS involving fatigue and left leg symptoms. A pre-existing right subacromial bursitis for which claimant received a cortisone injection three days prior to accident with minimal benefit was also noted.
The claimant reported lower back pain radiating across the hips and right lateral thigh, calf, and ankle since the accident. She is recorded to have denied pins and needles and numbness and denied weakness. Examination of the lumbar spine noted reduced range of movement. Examination of the lower limbs noted no neurological abnormalities. Dr Pope reviewed an MRI of the musculoskeletal lower back pain with possibly a discogenic cause at L5/S1.
Dr Pope opined that the claimant has musculoskeletal lower back pain with perhaps a discogenic cause at L5/S1. He recommended she have an MRI of the neck to rule out any disc pathology and any nerve root compression on the right side, and also a CT SPECT bone scan to rule out any inflammatory arthropathies of the facet joint, sacroiliac joints, hip joints and shoulder joints.
On 8 June 2022, the claimant attended a follow-up consultation with Dr Pope. Dr Pope noted her symptoms had deteriorated over time, particularly in the lower back and leg pain. On examination, there was pain in lumbar sacral junction with some spasming. There was decreased range of movement of the claimant’s back to less than 20% in all directions with fear avoidant behaviour. Dr Brew’s opinion was there were no surgical lesions in her spine and did not see any surgical solutions. He considered it reasonable for the claimant to have an L5/S1 epidural block to see if it helped with inflammation of the endplates at L5/S1. Dr Brew recommended the claimant attend upon Dr Alan Nazha, pain specialist, and noted he did not need to review the claimant again at this stage as she does not need any neurosurgical intervention.
On 14 February 2023, the claimant attended a review with Dr Pope. She complained of back and right leg pain. Dr Pope noted an MRI showed some disc space narrowing at L4/5 with inflammation of the end plates. Lumbar spine examination revealed reduced range of motion. Straight leg raise was noted to be limited on the right side and minimal myotomal weakness reported. Reflexes were symmetric and sensory examination unremarkable. Dr Pope recommended the claimant have another MRI to check on the L5/S1 disc to see if there is any further loss of height or budging, and to see if there is any compression of the neural structures. He noted that he may then look at the role of a discal block to see if the pain generator is the disc itself and may consider a spinal fusion if the claimant continues to suffer.
On 21 March 2023, the claimant attended a review with Dr Pope. It was noted that cortisone injections have offered some short-term benefit, but her symptoms have continued despite being on various strong pain killers. It was noted that a new MRI showed the foraminal disc herniation at L5/S1 on the right was slightly worse with impingement of the right L5 nerve root. Dr Pope opined that the claimant would need to have a discal block to see if this relieves her back and leg pain. If so, then she would need to have a decompression and fusion for a total facetectomy and a transforaminal lumbar interbody fusion on the right side. She was prescribed Palexia 100mg slow release twice daily.
On 21 April 2023, the claimant attended a follow-up consultation with Dr Pope. Dr Pope opined that the claimant’s L5/S1 disc herniation and right L5 nerve root impingement / adherence and radicular component contributed to her pain generator. Dr Pope opined that, based on the results of the discal block of local anaesthetic, the L5/S1 disc bulge is causing her discogenic back pain and right foraminal nerve root leg pain. Dr Pope noted that the claimant has failed non-surgical measures in all modalities and she does not want to put up with this any further or deteriorate. Dr Pope’s strong recommendation was for her to have a decompression and fusion, which he opined would help prevent further deterioration and help with her current symptoms and recovery.
On 31 May 2023, the claimant attended a follow-up consultation with Dr Pope. It was noted that a discal block of local anaesthetic confirmed the pain generator to be the L5/S1 disc. Her symptoms were reported to have worsened with back pain and right more than left leg pain. It was noted that she is functionally very disabled. Despite being on regular painkillers and undergoing non-surgical treatment, her symptoms are worsening. It was recorded that the claimant would like to proceed with a right sided stereotactic transforaminal lumbar interbody fusion to help prevent further deterioration of back and leg symptoms and to help with current symptoms.

Dr Alan Nazha

On 21 July 2022, the claimant attended upon Dr Alan Nazha, pain specialist. On examination it was noted that the claimant’s range of motion of the lumbar spine was restricted. Dr Nazha’s impressions record the claimant had a fairly complex history and it was difficult to fully ascertain the reasoning behind her pain, suspecting it is complicated by her MS. Dr Nazha opined that the claimant’s injury was likely ligamentous.
On 9 September 2022, Dr Nazha performed radiological guided diagnostic medial branch and lateral branch injections on the right-hand side.
On 13 October 2022, the claimant attended a follow up consultation with Dr Nazha. Dr Nazha considered that the claimant’s response to the 9 September 2022 injections suggested that a significant portion of her back pain was related to posterior elements of the lumbar spine and sacroiliac joint.

Dr Fatemeh Sarmast

On 7 December 2022, the claimant attended upon Dr Fatemeh Sarmast, Specialist Rehabilitation Physician. Dr Sarmast noted a history of chronic lower back pain related to MS and that claimant developed chronic lower back pain following the accident. It was reported that the claimant complained of constant sharp stabbing pain in right buttock radiating to her right groin associated with numbness to outer part of right leg. She is reported to have walked with an antalgic gait on examination, however had normal muscle tone and strength of the lower limbs. SLR testing did not provoke radicular pain.
Examination revealed a significant tenderness to the claimant’s right ischial tuberosity, and further assessment with ultrasound was recommended. It was also noted that the claimant developed pain in her lower back on the lumbar extension and quadrant test, suggestive of facet joint pathology. Dr Sarmast opined that the claimant’s positive response to medial branch block indicates that her pain arises from facet joints, and that she would benefit from nerve ablation as a therapeutic procedure to achieve sustained pain relief.
Dr Sarmast also recommended increasing the claimant’s dose of Gabapentin and prescribed Celebrex.

Associate Professor Ali Ghahreman

The report of Associate Professor Ali Ghahreman, neurosurgeon and spine surgeon, dated 14 July 2023 has been considered. This noted that the claimant impacted the medial aspect of her right buttock in the accident and has had persistent pain the region since. It refers to her MS diagnosis and past surgeries.
Associate Professor Ghahreman opined that the claimant’s back and leg pain is directly attributable to the accident in February 2022, given her symptoms were not present prior to this and a comparison of pre- and post- injury scans show definite changes. Associate Professor Ghahreman opined that she had undergone extensive courses of physiotherapy and injection therapies, and that a L5/S1 discectomy and posterior lumbar interbody fusion would correct her pathology and should give some improvement in her symptoms. He opined that this surgery was appropriate given her sensory disturbance and radicular pain.
The report of Associate Professor Ghahreman dated 3 October 2023 has been considered. This noted that the claimant has been in constant pain in the lower back, right lower limb, and right buttock. She has not gained relief from conservative interventions. It was noted that she has support from Dr Pope for surgical decompression and fusion at L5/S1. Associate Professor Ghahreman opined that the claimant would not require this treatment had she not been involved in the accident.
The response of Associate Professor Ghahreman to the claimant’s lawyers dated 4 December 2023 has been considered. The Panel notes that the letter sent to Associate Professor Ghahreman has not been provided, nor were the questions repeated by Associate Professor Ghahreman, making it difficult for the Panel to contextualise Associate Professor Ghahreman’s responses. Associate Professor Ghahreman opined that the claimant’s new pain involving the right buttock and right lower limb have developed as a consequence of the accident, and that her symptoms of right lower back pain and right lower limb pain did not exist pre-accident.
The report of Associate Professor Ghahreman dated 23 April 2024 has been considered. This stated that the claimant is still in incredible pain affecting the lower back with radiation to the leg on the right side with associated numbness and paraesthesia. Associate Professor Ghahreman reports that he is aware that the claimant had complained on occasion about her lower back pain to her GP but the pain was always mild, short lived and managed with pain killers over a few days. Associate Professor Ghahreman reported that, after the accident, the claimant experienced “a whole new pain”. He noted that conservative measures have failed to help her, and that she is requesting stronger medications. Associate Professor Ghahreman opined that the accident caused major deterioration in her lumbar disc at L5/S1 with the development of severe nerve compression in the exit foramen.
The supplementary response of Associate Professor Ghahreman to the claimant’s lawyers dated 10 June 2024 has been considered. The Panel notes that the letter sent to Associate Professor Ghahreman has not been provided, nor were the questions repeated by Associate Professor Ghahreman, making it difficult for the Panel to contextualise Associate Professor Ghahreman’s responses. Associate Professor Ghahreman opined that the claimant’s spinal injury and MS are not related conditions and explained the nature of both conditions. Associate Professor Ghahreman opined that MS cannot be responsible for pain of the nature the claimant describes. Associate Professor Ghahreman opined that the claimant has sustained a significant deterioration in her condition as a result of the accident and that the need for surgery is a result of the accident.
The report of Associate Professor Ghahreman dated 6 May 2025 has been considered. This report noted that the claimant had attended upon him that day and that her right ankle and foot were still “a bit achy”. Associate Professor Ghahreman referred to the claimant’s accident in 2022 and stated that it resulted in the “sudden onset of severe lower back pain and right-sided sciatica”. He opined that “[i]t is both clinically and radiologically evident that this accident was the primary and substantial contributing factor to her spinal deterioration, ultimately leading to posterior lumbar fusion surgery after conservative treatment failed”.
The claimant’s intermittent “vague” lower back pain in 2009 and 2016 was referenced in the reports. Associate Professor Ghahreman opined that these earlier episodes were mind, non-specific and self-limiting, with successful management using conservative therapy. He further opines that her earlier symptoms were not associated with any radicular pain or neurological deficit, nor did she report sciatica or signs of nerve root irritation.
Associate Professor Ghahreman opined that the timing and severity of the claimant’s symptoms are consistent with acute disc failure and nerve root compromise, secondary to trauma, not with chronic degenerative changes. He opined that her previously asymptomatic and compensated degenerative changes were destabilised by trauma.

Clinical notes of City West Medical Centre (CWMC)

The progress notes of CWMC collated on 10 March 2022, 12 July 2022 and 8 June 2023 have been considered.
In respect of the records of CWMC post-accident, on 13 February 2022 the claimant reported she was involved in a motor vehicle accident the previous night. It is noted that the claimant had developed lower back pain and stiffness, associated neck pain and stiffness, left wrist pain and stiffness and right ankle pain.
The CWMC records reflect that thereon after, the claimant had a consultation with the practice in person or via telehealth approximately once per week until the conclusion of the records on 5 June 2023. At these consultations, the claimant frequently reported persistent lower back pain, pain radiating down her buttocks and right leg, stiffness, right hip pain, pain on weight bearing with a limping gait, body aches, headaches, pins and needles, and neck pain. She also frequently reported right wrist pain and stiffness, and pain associated with prolonged standing and walking. The notes record that the claimant has felt depressed, anxious and had difficulty sleeping since the accident.
On 17 March 2022, the claimant reported that her symptoms had aggravated since the accident. On 11 April 2022, the claimant reported ongoing pain affecting her legs since the accident.
The claimant was referred to Dr Burak Dinc (chiropractor), Dr Raoul Pope (neurosurgeon), Dr Alan Nazha (pain specialist), Dr Bruce Brew (neurologist), Dr Jane Standen (pain specialist) and Dr Raiz Ismail (psychiatrist). On 12 May 2022, it was also reported that the claimant was undergoing weekly physiotherapy.

The claimant has been prescribed numerous analgesics since the accident, including Mersyndol Forte 450mg/30mg/5mg, Nurofen Plus 200mg, Gabapentin 100mg (later increased to 300mg), Endone 5mg, Effexor-XR 75mg and Valium 5mg. The clinical notes record that the claimant was advised to see her pain specialist regarding ongoing Endone prescriptions.
The claimant underwent an epidural block of her lower back on the recommendation of Dr Pope and is recorded to have received a corticosteroid injection of the lumbar spine on 16 June 2022 with limited improvement. On 24 October 2022, an injection of Tramal 100mg with Maxolon 10mg was prescribed and administered. On 14 December 2022, it was reported that the nerve block treatment did not work.
On 1 June 2023, it was recorded that Dr Pope had recommended surgical treatment for the claimant’s back.

Medical imaging

Post-accident medical imaging records were provided and the reports have been considered.
On 7 April 2022, an MRI of the whole spine was undertaken. A right far lateral disc bulge at L5/S1 causing mild indentation of the exited L5 root on the right side was noted, said to be a diffuse annular bulge with bilateral extension.
On 1 June 2022, the claimant underwent a bone scan. The scan showed degenerative change at the L5/S1 discovertebral joint.
On 16 June 2022, a CT-Guided Epidural Steroid Injection was carried out at the L5/S1 level.
On 8 August 2022, an MRI of the Lumbar Spine was undertaken. This showed evidence of degenerative disc disease at the L5/S1 level with moderate right exit canal narrowing and impingement upon the right L5 nerve root.
On 14 March 2023, an MRI Lumbar Spine was undertaken. This showed evidence of mild disc degeneration at the L4/5 level. At L5/S1, there is a circumferential disc bulge with moderate right foraminal stenosis and impinging upon the right L5 nerve root.
On 14 April 2023, a CT discoblock at L5/S1 was undertaken. The report concluded the discoblock is positive and that this level is a pain generator.
On 22 November 2024, an MRI of the lumbar spine was undertaken. The report noted, in respect of L5/S1, marked loss of disc height, mild broad-based posterior disc osteophyte complex, slightly more prominent at the foraminal region. There is moderate stenosis of the right neural exit foramen, suspicious for impingement of the exiting right L5 nerve root.

SUBMISSIONS

Insurer’s submissions

The insurer initially put on two sets of submissions, dated 11 November 2024 and 31 January 2025. The bundle produced by the insurer also includes its submissions dated 5 August 2024 in reply to the claimant’s application. On 16 April 2025, the insurer made written submissions to the Panel via the Portal. All four sets of submissions have been considered.
The insurer’s submissions to the Panel are detailed and lengthy. They also refer to and rely on the Certificate of Determination – Internal Review dated 18 October 2023 (Internal Review). The absence of a reference to an aspect of these documents should not be considered as a failure of the Panel to consider that submission.
The insurer submits any injury to the lumbar spine sustained in the accident was a soft tissue injury and, as such, the surgery is neither reasonable and necessary nor related to any injury sustained in the accident.
The insurer submits that the claimant’s pre-accident medical records confirm a long history of low back complaints, which were present in the months prior to the accident, and which were significant. The insurer submits that, while it appears Associate Professor Ghahreman was advised that the claimant had a history of lower back complaints, it is clear he was not provided with an accurate history, nor was he advised these complaints required ongoing Endone prescriptions.
The insurer submits there is no evidence that radiculopathy has been confirmed at any time following the accident.
The insurer notes that, after reviewing the claimant on 18 May 2022 and 8 June 2022, Dr Pope determined there were no surgical lesions and he did not believe surgical intervention would be required. On 21 July 2022, Dr Nazha examined the claimant and formed the view that the claimant’s lower back injury was likely a ligamentous injury. On 16 December 2022, Medical Assessor Truskett examined the claimant and determined that any injury to the lumbar spine sustained in the accident was limited to a soft tissue injury.
The insurer submits that the claimant’s medical records reveal that in 2016 the claimant gave a history of lower back pain and complained of pins and needles in both feet, bilateral paraesthesia of the feet, and numbness in the right big toe spreading to the sole of the foot. She is also reported to have experienced episodes of pins and needles in the groin.
The insurer submits that the pre-accident medical records confirm that there was recorded evidence of radiation of pain to the claimant’s right leg. Relevantly, the insurer refers to the records of CWMC which record a history of psychological complaints, chronic pain complaints and a seizure in 2009. The CWMC records note the claimant made complaints of back pain at consultations in February 2010, March 2010, April 2011, February 2016, March 2016, January 2017, July 2017, January 2019. The records of 25 November 2019 and 20 May 2020 record the claimant complained of low back pain and neck tenderness / pain, and on 16 December 2019 she reported an acute exacerbation of back pain. She was prescribed Endone in January 2019, November 2019, May 2020, November 2021 and January 2022. In February 2021, it was recorded that the claimant was awaiting approval for medical cannabis.
The insurer submits that in February 2016, the claimant gave a one-week history of lower back pain and complained of pins and needles in both feet. She was referred to Mr Vijay Mallisety. In March 2016, the claimant complained of bilateral paraesthesia of the feet. Also in March 2016, the claimant was referred to Dr Burak Dinc, chiropractor, and attended on Dr Bruce Brew, neurologist.
In respect of the attendance on Dr Brew, the insurer notes that report of Dr Brew dated 7 March 2016 records that the claimant gave a history of having developed numbness in the right big toe spreading to the sole of the foot. The day prior to the development of these symptoms, the claimant reported experiencing sudden pain in the lower central back after bending over. She described similar symptoms having subsequently developed in the left foot. Dr Brew noted an MRI scan of the lumbosacral spine revealed minor degenerative changes and examination revealed mild limitation of back movements but no definite neurological signs.
In respect of the MRI Report of the lumbar spine dated 4 March 2016, the insurer submits that this confirms the presence of an L5/S1 disc protrusion which was close to the origin of the left S1 nerve root. The insurer submits that this coincides with the left lower extremity symptoms which the claimant now seeks to attribute to the accident.
The insurer notes that the imaging records also refer to a lumbar puncture that was undertaken in 2010 following a seizure and an MRI of the whole spine performed on 16 July 2013 which revealed disc bulging at L5/S1.
The claimant attended upon Ms Georgina Choueifati at Chirohaus on 8 April 2019 complaining of lower back pain and was diagnosed with a lumbar disc bulge. The claimant continued to attend Ms Choueifati for treatment of her lumbar spine complaints until April 2021.
On 15 October 2020, the claimant attended upon Dr Jane Standen at Sydney Pain Specialists.
The insurer submits that in 2020 and 2021, the claimant’s medical records reveal she described multi-site pain involving her upper limbs, lower limbs and lumbar spine. She also described generalised aches and pains, burning on the soles of her feet and reported that it felt like her bones were rotting. She reported episodes of shaky legs, and it was recorded that the claimant “has chronic pain affecting her daily activities”.
In January 2022, it was recorded that the claimant’s MS symptoms had increased, and she complained of muscle stiffness and advised she required assistance with most physical activities.
The insurer submits that it is evident that the claimant’s MS was worsening in the two years prior to the accident, and notably in the month prior to the accident. The insurer says this is a relevant neurological condition which is known to cause symptoms in the spinal cord and numbness and weakness in the arms and legs. The insurer submits that, where the proposed treatment relates to neurological symptoms associated with the lower limbs, it is incumbent on an assessor to consider whether the claimant’s MS could be a cause for her reported radicular symptoms, which the insurer says were present prior to the accident.
The insurer has also referred to and summarised the claimant’s medical history post-accident, including the assessment of Medical Assessor Truskett in respect of the claimant’s threshold injury dispute on 16 December 2022.
In its internal review, the insurer referred to the NSW Ambulance Report dated 12 February 2022 and the claimant’s medical records post-accident, including those of CWMC, Dr Dinc, Dr Brew, Dr Pope, Chirohaus and Associate Professor Ghahreman. The insurer upheld the decision to decline liability for the surgery, noting that it was unclear whether the claimant’s history and Commission decision regarding threshold injury had been provided to her treating doctors.
The insurer submits that the surgery was inevitable treatment that the claimant was likely to have required as her lumbar spine pathology progressed, irrespective of the accident.

Claimant’s submissions

The claimant initially lodged two sets of submissions, dated 16 July 2024 and 28 November 2024. On 16 April 2025, the claimant made written submissions in reply to the Panel via the Portal. All three sets of submissions have been considered.
The claimant submits that the surgery request by Associate Professor Ghahreman on 17 July 2023 is reasonable and necessary as it satisfies the criteria set out in s 3.24 of the MAI Act and the reasonable and necessary criteria in the Guidelines.
The claimant submits that she sustained the following injuries in the accident:
(a)    injury to neck (cervical spine): radiculopathy;
(b)    injury to right shoulder / arm (right upper limb): including radiculopathy;
(c)    injury to left shoulder / arm (left upper limb): including radiculopathy;
(d)    injury to back (lumbar): including radiculopathy; and
(e)    psychological and/or psychiatric: post-traumatic stress disorder.
The claimant submits that, while she did have pre-existing chronic lower back pain and a previous diagnosis of MS, the accident is the clear cause of her aggravated and new lower back pain, radicular complaints, and L5/S1 disc bulge. The claimant says these injuries are not the result of a pre-existing or unrelated diagnosis. The claimant submits that her previous lower back pathology showed no evidence of radiculopathy and that there are definite changes post-accident.
The claimant notes she has complied with the medical advice of her treatment providers however, given the failure of conservative measures to address the lumbar spine injury, Dr Bruce Brew, Dr Raoul Pope and Associate Professor Ghahreman have proposed surgical treatment.
The claimant refers to notes of Dr Bruce Brew dated 7 March 2016 which state “MRI scan of the Lumbosacral spine which shows minor degenerative changes only, certainty on examination there was mild limitation of back movements but no definite neurological sings [sic]”, and of 16 August 2022 which state “MRI scan performed 8 August 2022 shows a disc at L5/S1 on the right which seems to have developed. It is irritating the L5 nerve root”.
The claimant refers to Medical Assessor Truskett’s assessment dated 30 December 2022 and his comments regarding the MRI lumbar spine and lumbosacral plexus performed 8 August 2022. The claimant submits that Medical Assessor Truskett’s assessment of the claimant as having sustained minor injuries as a result of the accident goes against the balance of the evidence available.
The claimant refers to the clinical file of Dr Raoul Pope, neurosurgeon, and his notes dated 14 February 2023, 21 March 2023, 21 April 2023 and 31 May 2023.
The claimant also refers to the report of Associate Professor Ghahreman dated 14 July 2023 which states:
“Derya who has a history of MS, also had some well-controlled lower back pain centrally in the lower lumbar region prior to the accident but following the accident she has developed severe right lower back, right buttock and right lower limb pain associated with paraesthesia. … Ms Mataraci’s back and leg pain is directly attributable to her motor vehicle accident in February 2022 given that her symptoms were not present prior to this and comparison of pre and post injury scans show definite changes”.
The claimant refers to the supplementary report of Associate Professor Ghahreman dated 10 June 2024 which opines there is no causal relationship between the claimant’s MS and her spinal injury, and that her severe lower back pain and lower limb pain are substantially contributed to by the accident.
The claimant submits that the reports of Dr Pope and Associate Professor Ghahreman indicate a clear pathological change in the claimant’s lower back injury, as indicated by a comparison of her pre- and post-accident radiological investigations.
The claimant submits that the overwhelming balance of the medical evidence suggests that the claimant did not have radiculopathy prior to the accident, and that Medical Assessor Wallace clearly identified the presence of radiculopathy at the time of his assessment.
The claimant submits that the treatment is appropriate as, although she had pre-existing chronic lower back pain and a diagnosis of MS, the accident is the clear cause of her new and aggravated ongoing lower back, radicular complaints, L5/S1 disc bulge and is not the result of pre-existing or unrelated diagnosis. The claimant says this is supported by the reports of Dr Pope and Associate Professor Ghahreman.
The claimant has undergone physiotherapy and injection therapy as conservative measures to avoid surgical intervention. The claimant submits that these non-invasive measures have not yielded any benefit. Further, she submits that her surgeons are unanimous there are no other conservative measures available that would sufficiently resolve her symptoms. Accordingly, given the failure of alternative conservative treatment, the claimant submits that the treatment is appropriate in the circumstances.
The claimant refers to the opinion of Associate Professor Ghahreman that the surgery would correct her pathology, give some improvement to symptoms and is appropriate given her sensory disturbance and radicular pain. She submits that Associate Professor Ghahreman considers the surgery would likely result in the claimant being in a position to return to some appropriate work-related activities between 12 to 16 weeks post-surgery.

THE MEDICAL EXAMINATION

On 2 April 2025, the claimant was examined by Medical Assessor Rhys Gray and Medical Assessor David Gorman at the Commission’s medical suites.

Who attended the assessment?

The claimant attended the consultation in the company of her daughter.

History provided at the medical examination

Pre-accident medical history and relevant personal details

The claimant is now 44 years of age and not working. She is separated from her husband and on a Disability Pension because of MS.
In recent years she’s been essentially a “stay at home mum” and has two adult daughters, aged 20 and 24 years.
When younger, she worked as a cashier and stopped work because of her widespread symptoms that she attributed to MS.
She smokes about 30 cigarettes a day and does not drink alcohol.
She notes a previous history of episodic lumbar spinal pain requiring review with her local medical officer but no treatment.
She said her diagnosis of MS dated from about 2012, having had a seizure four years earlier. Initially she had experienced numbness in her neck region and was advised that an MRI had been positive for MS.
She continues to attend Dr Brew, neurologist. She has continued medication for her MS. She says currently she has fatigue and generalised aches and pains because of her MS. She said she has a ‘lightning strike’ of pain from the left hip area to the left foot on about a monthly basis which is related to her MS. She said that she had tried medicinal cannabis for her MS.
She acknowledged that she had considerable ongoing pain in the neck from MS in recent years, unrelated to the accident.
She has taken Valium, medicinal cannabis, Oxycontin 10mg bd, Targin, Gabapentin 300mg bd for burning feet; Gilenya 1mg daily for MS, and Effexor.
She had complaints of back pain in the bra-strap region.
She has had chiropractic treatments, physiotherapy and dry needling.
She said before the accident she had low back pain on and off. She said she never had pain to the right leg before the accident as far as she could recall.
She has been taking Lamictal since a seizure many years ago.

History of the motor accident

The claimant reported that she was involved in a motor vehicle accident on 12 February 2022. At that time, she was a driver and wearing a seat belt. While she was driving straight on Gordon Road, Auburn, a car approaching from a right-hand side street failed to stop at a give-way sign and crossed her path. She T-boned the other vehicle at its passenger side. She had to slam on her brakes when her car T-boned the other vehicle. Her airbags deployed. Her car spun multiple times on impact and might have hit the kerb. She does not recall if she sustained loss of consciousness.

History of symptoms and treatment following the accident

She said that after the accident she had quite definite right leg pain. Immediately after the accident she said she experienced a sensation as if she were on fire. She forced her driver’s door open and said she had instant pain on her ‘bottom’.
Police and ambulance attended the scene. She was transported by ambulance to Auburn Hospital where she was admitted overnight. She underwent a CT examination of her cervical spine which showed no abnormality. She was discharged at 4.00am on the morning following the accident.
She was later reviewed by her local medical officer regarding her lumbar spinal condition and was referred for physiotherapy. She was referred for a specialist review with Dr Pope who initially assessed her on 18 May 2022. Dr Pope ordered a corticosteroid injection at the lumbar spine which failed to relieve her pain. He later recommended operative intervention.
The claimant was later referred for to Dr Nazha who initially assessed her on 21 July 2022. Dr Nazha ordered a series of medial branch and lateral branch injections at her lumbar spine which relieved her pain for 24 hours only.
The claimant was then referred for a further opinion with Associate Professor Ghahreman who initially assessed her on 14 July 2023. Associate Professor Ghahreman also recommended operative intervention at the lumbar spine.
She had lumbar surgery at St George Private on 14 December 2024.

Details of any relevant injuries or conditions sustained since the accident

The claimant has sustained no relevant injuries or conditions since the accident, nor did the Panel find any such records in the documents before it.

Current symptoms

The claimant said that she has her “ups and downs” and thought there was some improvement after the recent surgery. She said she’s now able to sit on the right buttock region and now able to cross her left leg to the right, whereas formerly she needed to elevate the right side of her buttock.
Regarding back pain, she said there had been some improvement but there were still low back pain symptoms.
She also described a pain from the right knee distally. It was unclear whether this was new pain in the area of the right knee and right ankle post-accident or it was pain post-surgery. She also described pins and needles in the right foot, including the toes.

Overall the claimant said that post-surgery she felt the right buttock pain had improved, although she still was “considerably sore” and her right leg pain had continued.
She described intermittent dysaesthesia in the right foot in particular, as if hot ash is falling onto the foot area or she is being stung by an insect. There is throbbing mainly in the inside of the right foot and right big toe.
She said she has been referred to a surgeon for an opinion regarding her ongoing symptoms in her right foot. The bone scan in 2022 showed midfoot changes on the right plus changes at the lumbo-sacral junction.

Current and proposed treatment

She continues on Oxycontin 10mg bd, Vitamin D, Gilenya 1mg daily for MS, Effexor, gabapentin 300mg bd and Lamictal (after her seizure).

Clinical Examination

General presentation

The claimant is 163cm tall and weighs 67kg.
Her gait was normal.

Cervical and thoracic spine

She had a reasonable range of symmetrical cervical and thoracic spinal movements.

Lumbar spine

She had an 11cm posterior midline scar after the lumbar surgery. It was well healed.
Examination of her lumbar spine showed no swelling or deformity.
She indicated some tenderness over the upper part of the scar over the lumbar spine and in the right sacroiliac region.
She had a range of movement of forward flexion which was ½ normal, extension to ½ normal, left lateral to ½ normal, right lateral tilt to ½ normal, left rotation to ½ normal and right rotation ½ normal. There was tenderness at the L4/5 spinous process.
She had straight leg raising to 80° on the right and 80° on the left with discomfort over her back, without radicular complaints.
Neurological examination of her lower limbs shows equal and symmetrical reflexes.
There was decreased power of right great toe dorsi flexion (L5). There was decreased light touch and pin prick sensation over the inner side of the right foot.
Her calf circumference measured 34cm on the right and 34cm on the left. Thigh circumference was 46cm on the right and 48cm on the left.

Lower extremities

Left and right hip ranges of motion were normal with some tenderness over the right trochanteric bursa not affecting gait.
Ankle and hindfeet were normal on examination with normal range of motion and no tenderness.

Comments on consistency

The claimant became quite overtly emotionally upset and teary for a short period on being asked about and then describing the accident itself and symptoms. She said that from the day of the accident she had been struggling and that she was “so over it”. However, she was cooperative and consistent throughout the consultation.

PANEL’S DETERMINATION

Does the treatment relate to the injury resulting from the accident?

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”.
For the accident to have been causative of the need for the surgery, the accident must have made at least a material contribution to the need for surgery: AAI Ltd v Phillips [2018] NSWSC 1710 at [29] (Phillips).
The Panel considers that the claimant suffered an injury at her lumbar spine as a direct result of the accident. The mechanism of injury she described at the medical examination, being using her right foot to slam on her brakes, is consistent with being the cause of, or material aggravation of, lumbar spinal pathology.
The Panel notes the claimant’s pre-accident presentations to Dr Brew (Neurologist) and Dr Standen (Pain Specialist) with widespread pain, including low back pain and right leg pain. The pains were variable in intensity and affecting multiple sites. In the Panel’s opinion, these pre-accident presentations were likely related to the claimant’s MS.
Dr Brew’s report of 7 March 2016 is noted where the claimant reported a period of right great toe numbness and low back pain. Dr Brew noted that the claimant had also presented with left foot numbness a few days prior.
The pre-accident records also suggest features of a “chronic pain syndrome” with widespread pain, plus opioid and benzodiazepine use / dependence with anxiety and a depressed mood.
The claimant said she could not recall any right leg pain before the accident. She was specifically questioned and advised by Medical Assessors Gorman and Gray that there was some documentation in the pre-accident clinical notes regarding this; the claimant maintained that she was unable to recall pre-accident right leg pain.
Aside from a reference to shaky legs on 5 January 2021, the Panel notes there was no reference in the pre-accident GP records to right leg pain. The Panel also notes there is no pre-accident reference to right buttock pain in the claimant’s medical records.
The claimant received chiropractic treatment for lower back pain prior to the accident.
The Panel refers to the clinical notes from the claimant’s general practitioner record that she has a history of lower back pain dating from 2010. In the records before the Panel, the claimant attended her general practitioner for back pain on 2 March 2010, 30 June 2010 and 6 April 2011, obtained a CT for her cervical spine in 2012, then did not attend for back pain until February 2016. There were three consultations with her GP regarding back pain in 2016. From October 2019 until 20 May 2021, the claimant attended upon her GP and reported back pain on six occasions. She subsequently reported pain on approximately a 6-weekly basis throughout 2021.
The Panel notes that the contemporaneous records show that the claimant’s symptoms progressed in the immediate post-accident period and have continued. The claimant has reported ongoing pain and right radicular features since the accident.
The NSW Ambulance Report of the accident records that the claimant had shooting pain down her right leg on palpation of the lumbar / sacral region, and the secondary survey notes her right leg had altered sensation with tingling and shooting and tingling on palpation of the lumbar spine.
Medical Assessor Truskett on 30 December 2022 felt that the lack of radiculopathy at that time meant that this was a threshold lumbar spinal injury. He noted the L5/S1 right sided disc protrusion with foraminal compromise but did not consider this was a disc injury caused by the accident. Medical Assessor Truskett noted the development of right buttock pain.
Dr Brew’s report of October 2022 records severe pain from lower back into right buttock, anterior thigh, shin and dorsum of the right foot with occasional left sided symptoms.
Dr Pope’s report of May 2022 notes the claimant reporting lower back pain radiating across the hips and right lateral thigh, calf and ankle since the accident.
Dr Sarmast’s report of December 2022 notes the claimant reports constant sharp stabbing pain in right buttock radiating to her right groin associated with numbness to outer part of right leg.
After the accident, the claimant evidenced right L5 radiculopathic (pain and numbness) symptoms when seen by Associate Professor Ghahreman who initially assessed her on 14 July 2023. The Panel notes that Associate Professor Ghahreman’s reports refer to his awareness of the claimant’s pre-accident lower back pain, and his opinion that the accident was the primary and substantial contributing factor to her spinal deterioration.
The claimant is recorded to have had definite radiculopathy at the time of the clinical examination by Medical Assessor Wallace on 29 October 2024.
The Panel finds that the claimant had no recorded evidence of right L5 radiculopathy prior to the accident. The Panel finds that, while the claimant had MS symptoms pre-accident, her MS is not the cause of her post-accident radicular symptoms.
The Panel notes that the pre-accident radiological imaging reports refer to degenerative changes and the MRI of the lumbosacral spine undertaken on 4 March 2016 showed mild disc space loss at L5/S1, shallow left paracentral disc protrusion and disc bulging. The MRI of the lumbar spine undertaken on 13 July 2016 showed evidence of a disc bulge at the L5/S1 level. Following the accident, MRIs undertaken on 7 April 2022, 8 August 2022 and 14 March 2023 show impingement upon the right L5 nerve root.
The Panel notes that, while the presence or absence of a contemporaneous record of a complaint is relevant in determining causation, it must not be treated as conclusive.[6]
[6] Somyaying V AAI Ltd (t/as GIO) (2021) 98 MVR 110 at [50], referring to Norrington v QBE Insurance (Australia) Ltd (2021) 96 MVR 170; [2021] NSWSC 548.
The Panel considers the claimant’s diagnoses caused by the accident are as follows:
(a) musculoligamentous strain lumbar spine, and
(b) aggravation of pre-existing degenerative disc disease L5/S1 level with some foraminal stenosis at L5-S1 on the right, causing impingement of the right L5 nerve root.
In the Panel’s opinion, the surgery should relieve the claimant’s right leg symptoms.
Applying Phillips, the Panel notes the accident must have made at least a material contribution to the need for treatment but does not need to be the sole cause. The Panel finds that the accident made at least a material contribution for the need for treatment. The Panel finds that the claimant’s MS would not have led to her need for surgery.
But for the accident, based on the evidence before it and on the balance of probabilities, the Panel considers that the surgery would not have been required.
The Panel finds that the treatment, being posterior L5/S1 decompression and fusion surgery, relates to injury caused by the accident.

Is the treatment reasonable and necessary in the circumstances?

In such a case, the claimant is required to establish that the treatment is both reasonable and necessary. When discussing the meaning of “reasonably necessary under s 60 of the Workers Compensation Act 1987 (NSW) (WC Act) in Clampett v WorkCover Authority of NSW, Grove J stated, at [22]-[23]:
“22. … Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ — (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ — Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.
Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled: see Diab v NRMA Ltd at [88]. They include:
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment;
(c)    the cost of the treatment;
(d)    the actual or potential effectiveness of the treatment; and
(e)    the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
It is noted that the “reasonable and necessary” test in the MAI Act differs from the WC Act test and other legislation that requires a claimant to establish that the treatment is “reasonably necessary”. The MAI Act legislation imposes a stricter requirement because there is no moderation of the requirement that the treatment is “necessary’.
While the above case law relates to a different scheme and another test, the Panel considers these observations are relevant to its decision of whether the claimant’s surgery is reasonable and necessary.
The words “in the circumstances” in the context of whether the treatment is reasonable and necessary refer to the particular circumstances of the claimant in the proceedings before the Panel.
In assessing whether the surgery is reasonable and necessary, the Panel has considered the opinions of the claimant’s treating neurologist and neurosurgeons, the nature and persistence of the claimant’s symptoms, the failure of non-operative measures, and the prospect of material benefit from the surgery, in addition to factors such as the cost.
Here, the claimant had significant ongoing pain at her right leg consistent with right L5 radiculopathy. She had evidence of right L5 radiculopathy on clinical examination at the time of review by Medical Assessor Wallace on 29 October 2024. There is no clinical evidence that the claimant was suffering from right L5 radiculopathy prior to the accident, apart from reports of right leg pain.
The Medical Assessors on the Panel found evidence of radiculopathy at their medical examination of the claimant on 2 April 2025.
The claimant’s radiological imaging pre-accident evidenced mild disc space loss at L5/S1, shallow left paracentral disc protrusion and disc bulging at L5/S1. While potential impingement of the exiting right L5 nerve was noted in March 2016, a subsequent MRI on 13 July 2016 concluded that the changes at L5/S1 were not marked and without focal nerve root impingement. All other pre-accident MRI scans did not show any nerve impingement.
In contrast, post-accident, the MRI investigation of 14 March 2023 evidenced a right-sided disc protrusion at the L5/S1 level with definite impinging upon the right L5 nerve root.
Before the recent surgery, the claimant complained of a predominantly right buttock and right lower limb pain rather than lumbar spinal pain.
The claimant underwent a comprehensive conservative regime of treatment under the guidance of her treating neurologist and neurosurgeons, which failed to relieve her right leg symptoms. This included chiropractic treatment and physiotherapy treatment, with no reported long-term benefits. The claimant has also trialled injection therapy.
The Panel finds that the surgery is clinically indicated where it is apparent that non-operative treatment has not resulted in ongoing resolution of the claimant’s lower back pain, right buttock pain and L5 radiculopathy.
The treatment of decompressing a symptomatic lumbar nerve root is appropriate. The claimant has had alternative treatment to decompress the nerve in the form of a peri-neural steroid injection. She has had chiropractic treatment.
The Panel finds that the likely cost of the surgery is no more than extensive conservative care, which is likely to have significant ongoing costs. The decompressive surgery in this case should be effective. If a lumbar nerve root is compressed and symptomatic, such as in the claimant’s case, then it is the clinical opinion of the Medical Assessors on the Panel that relief by laminectomy and decompression is appropriate.
The Panel finds that, given the claimant’s particular circumstances of experiencing ongoing pain in her right leg consistent with L5 radiculopathy, and where a comprehensive conservative treatment regime has failed, the surgery is reasonable and necessary.
The Panel notes that the surgery has been carried out and, while it is still early days in terms of recovery, the claimant has had improvement in right buttock pain and in some aspects of her right leg pain.

CONCLUSION AND CERTIFICATION

For the above reasons, the Panel finds the posterior L5/S1 decompression and fusion surgery does relate to the injury caused by the accident.
The Panel finds the posterior L5/S1 decompression and fusion surgery is reasonable and necessary in the circumstances.
The Panel confirms the certificate of Medical Assessor Wallace dated 4 November 2024.

[2025] NSWPICMP 536

23 July 2025