Allianz Australia Insurance Limited v Sekar
[2025] NSWPICMP 329
•12 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Sekar [2025] NSWPICMP 329 |
CLAIMANT: | Vidhya Sekar |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Bianca Montgomery-Hribar |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 12 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); treatment and care dispute; request for cervical discectomy and fusion surgery; denial by insurer under section 3.24; whether proposed treatment and care relates to injury resulting from the motor accident; whether proposed treatment and care is reasonable and necessary in the circumstances; claimant re-examined; Held – proposed treatment and care relates to injury caused by motor accident; proposed treatment and care is reasonable and necessary in the circumstances; 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 Philip Truskett dated 2. The Review Panel finds the C6/7 anterior cervical discectomy and fusion surgery: (a) relates to injury caused by the accident; and (b) is reasonable and necessary in the circumstances, for the purposes of s 3.24 of the Motor Accident Injuries Act 2017. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 13 September 2023, Vidhya Sekar (claimant) was involved in a motor vehicle accident on Old Windsor Road, Kellyville, when the vehicle she was driving was hit from behind by a 12-seater van (accident).
Allianz Australia Insurance Limited (insurer) is the third-party insurer liable to pay the claimant statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (MAI Act).
The claimant sought approval for a treatment and care request from the insurer to undergo a C6/7 anterior cervical discectomy and fusion (the surgery). The insurer declined the treatment and care request on the basis that it said the surgery is not related to injuries sustained by the claimant in the accident and is therefore not reasonable and necessary in the circumstances.
The claimant sought review of this decision by the Personal Injury Commission (Commission). The issue in dispute is whether the surgery relates to an injury causally related to the accident and whether the surgery is reasonable and necessary in the circumstances.
The dispute was referred to Medical Assessor Philip Truskett. By certificate dated 23 October 2024, Medical Assessor Truskett determined the surgery was related to injuries caused by the accident and reasonable and necessary.
On 12 November 2024, the insurer lodged a review application in relation to the Certificate of Assessor Truskett under s 7.26 of the MAI Act.
On 2 December 2024, a delegate of the President determined there was reasonable cause to suspect that the medical assessment of Medical Assessor Truskett 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 Philip Truskett’s certificate dated 23 October 2024 (Review).
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 and include weekly loss of income benefits for “earners” and treatment and care benefits.
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,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(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.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with 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)”.
The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining causation.[1] It is therefore necessary 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].
Dispute resolution
Part 7 of the MAI Act provides for the resolution of disputes that arise in respect of motor accident claims.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. 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 Schedule 2 clause 2(b) of the MAI Act, 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 s 3.24 (Entitlement to statutory benefits for treatment and care) is a medical assessment matter. Accordingly, the current dispute about the claimant’s surgery is a medical assessment matter pursuant to Part 7 of the MAI Act.
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 and a Member assigned to the Motor Accidents Division of the Commission.
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.
Procedural history before the panel
On 9 December 2024, the Panel made directions for the filing of a joint bundle containing the documents and submissions relied upon by the parties for the purposes of the Review.
On 19 March 2025, the Panel met in relation to the Review. It considered that, based on the material before it and the thorough medical examination undertaken by Medical Assessor Truskett, a re-examination of the claimant was not required. It requested that the parties advise in writing on or before 4 April 2025 if they considered a re-examination of the claimant was required.
On 21 March 2025, the insurer submitted that a re-examination of the claimant was required. Upon consideration of the parties’ submissions, the Panel made directions for the claimant to attend a medical examination before Medical Assessor Gorman on 11 April 2025 at the Commission medical suites.
On 30 April 2025, a further teleconference was held by the Panel. The Panel considered that a further examination of the claimant was required and directed that the claimant attend a medical examination before Medical Assessor Gorman via MS Teams on 5 May 2025.
ASSESSMENT UNDER REVIEW
Medical Assessor Truskett examined the claimant on 12 September 2024. The claimant attended the examination in the company of her husband. The Medical Assessor was asked to assess “whether the claimant’s C6/7 anterior cervical discectomy and fusion in relation to the physical injury:
(a) relates to the injury caused in the motor vehicle accident; and
(b) …is reasonable and necessary in the circumstances.”
The Medical Assessor noted the claimant’s psychosocial and pre-accident history. Relevantly, it was reported that the claimant denied previous neck symptoms, but indicated she had previous pain in the left side of her neck and left shoulder in 2019. This pain persisted for approximately eight months and was due to feeding her newborn son. She attended Dr Prarthana Packiam at Merindah Medical Centre (MMC) and had ten treatments with a chiropractor, but did not seek specialist treatments. The claimant reported she had fully recovered and by mid-2020 was pain free and fully active.
The Medical Assessor noted the history of the accident and the claimant’s symptoms and treatment following the accident. The Medical Assessor concluded that the claimant had a demonstrated disc lesion compressing the C7 nerve root which is symptomatic. Given the claimant’s clinical symptoms and their persistence, the Medical Assessor concluded that a C7 discectomy and spinal fusion would be considered appropriate. The Medical Assessor issued his certificate on 23 October 2024, concluding that the surgery is causal to the accident and reasonable and necessary in the circumstances.
SUBMISSIONS
Insurer’s submissions
The insurer has put on detailed submissions dated 12 February 2025, which have been considered by the Panel. The insurer submits that the proposed surgery is not related to injuries sustained in the accident and is therefore not reasonable and necessary in the circumstances. The insurer submits the claimant did not suffer any injury to her cervical spine in the accident and therefore the surgery recommended 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 significant and long-standing pre-existing injuries to her cervical spine, which extend to over seven years prior to the accident. In support of this submission, the insurer refers to extracts of the claimant’s pre-accident medical history, including references to neck pain with radiculopathy in the records of her previous general practitioner, Dr Packiam. The MMC records included a report of a CT of the cervical spine and a CT of the lumbosacral spine undertaken on 1 June 2020, which referenced disc bulging and cervical spine degenerative changes. The insurer notes the records of Rouse Hill Family Medical Practice refer to the claimant having previously experienced compression in her cervical spine and that she “had traction 10 years ago”.
The insurer also references a GP management plan provided in June 2020 for “CT scan - cervical spine degenerative changes – C4/C5-C6, lumbar disc herniation, muscles spasm – neck and back”. The treatments included physiotherapy, remedial massage, exercises and relaxation of the muscles of the back and neck. The insurer references the records of the claimant’s physiotherapist and chiropractor from 2020 and 2021, both of which record the claimant reporting neck pain.
The insurer submits that examination of the claimant’s cervical spine following the accident did not reveal any tenderness and it was recorded the claimant had full range of motion. The insurer refers to the claimant’s post-accident medical evidence and submits that the first report of the accident was to Dr Aman Madan at the Rouse Hill Family Medical Practice on 14 September 2023. The insurer submits Dr Madan’s impression was the claimant had suffered whiplash and no imaging was required.
The insurer submits that, following the accident, the claimant consulted a chiropractor but the treatment did not involve the cervical spine.
The insurer notes the claimant consulted Dr Hawkins, general practitioner, on seven occasions regarding her cervical spine and submits no reference was ever made to the claimant being involved in a motor vehicle accident. The insurer submits that Dr Hawkins seemingly treated the claimant based on the history she provided, being that she suffered an injury while exercising and lifting weights at the gym a month prior to her first consultation on 23 November 2023. The insurer submits this was the first complaint post-accident relating to the cervical spine and “radicular” symptoms.
The insurer submits the claimant had no difficulty or injury prohibiting her from carrying out exercises at the gym and undertaking weightlifting post-accident, and that in the event the claimant is suffering from an exacerbation of a pre-existing condition, any exacerbation was caused from an injury sustained while exercising and weightlifting and not caused by the accident.
The insurer further submits the medical practitioner recommending the surgery, Dr Pope, was not provided with a full and complete medical history from the claimant. Specifically, Dr Pope was not advised of the investigations and treatment received by the claimant with respect to her cervical spine prior to the accident and no reference was made to the subsequent injury sustained by the claimant following the accident while she was at the gym and weightlifting.
The insurer notes a CT of the cervical spine was performed on 24 November 2023 and that, in its submission, the findings particularly at C5/6 and C6/7 are consistent with the results of the CT cervical spine performed on 1 June 2020.
The insurer’s submissions also included submissions in support of an application for review, being the issue before the President’s delegate. Those submissions have been considered by the Panel.
The insurer’s application for review submissions include reference to the State Insurance Regulatory Authority (SIRA) Guidelines for Management of Whiplash Associated Disorders (WAD Guidelines) and cl 5.8 of the Motor Accident Guidelines (Guidelines) regarding findings of cervical radiculopathy or rapidly progressing neurological deficit and the appropriateness of surgery. The insurer submits that the Medical Assessor’s findings are not consistent with radiculopathy being present and, in the absence of evidence of cervical radiculopathy or any rapidly progressing neurological deficit, it was erroneous of him to conclude that the surgery is reasonable and necessary.
Claimant’s submissions
The claimant relies on her submissions dated 27 November 2024 in reply to the insurer’s application for review. These submissions have been considered by the Panel.
The claimant’s submissions focus on the correctness of Medical Assessor Truskett’s assessment and certificate. In summary, the claimant submits that the Medical Assessor was correct and that the insurer has failed to identify any clear errors in the certificate. The claimant also submits that the Medical Assessor considered the available evidence before him and has adequately assessed causation.
Relevantly, for the purposes of the review by the Panel, the claimant refers to the MRI cervical spine performed by Rouse Hill Medical Imaging on 9 December 2023 reported by Dr Melvin Chew which concluded “…disc bulging of C6/7 level with broad-based right paracentral foraminal disc protrusion with high-grade right and moderate to high-grade left-sided foraminal stenosis and impingement of bilateral C7 nerve roots.”
The claimant refers to Medical Assessor Truskett’s statement that “She has had an episode of injury and a demonstrated disc lesion compressing the C7 nerve root which is symptomatic. Given her clinical symptoms and their persistence, a C7 discectomy and spinal fusion would be considered appropriate and due to the motor vehicle accident”.
The claimant submits that she has demonstrated neurological deficit and therefore Medical Assessor Truskett’s determination that the surgery was reasonable and necessary is consistent with the WAD Guidelines.
EVIDENCE BEFORE THE PANEL
Application for personal injury benefits
In the claimant’s application for personal injury benefits she reports her injuries resulting from the accident to be “After the accident, my entire neck became stiff, my hands were paining [sic]. Further CT scans / MRI reveal that I have a disc bulge C6/C7 on my neck”.
In response to the question of whether she was suffering an illness or injury affecting the same or similar parts of her body at the time of the accident, the claimant has ticked “No”.
The application was signed and declared true and correct by the claimant on 16 February 2024.
Statement of the claimant
The claimant relies on a signed statement dated 28 February 2024. This statement has been considered by the Panel. This statement sets out the claimant’s recollection of the accident and the injuries she says she sustained, relevantly being “Injury to neck – radiculopathy and disc herniation”. Her statement also sets out the impact the injuries have had and continue to have on her life.
The claimant sets out her treatment regime, including current medications and treatment providers.
Her statement sets out her previous injuries and medical conditions, as well as previous medical providers. She states she “ha[s] not suffered from any prior injuries or medical conditions other than those mentioned above”.
The Panel notes that her statement does not mention any prior injuries or medical conditions except those said to be caused by the accident. The claimant also states she has no prior disabilities.
Pre-accident medical records
Precision Health Spine and Sports Clinic
The records of Precision Health Spine and Sports Clinic, dated 3 October 2024, have been considered. The claimant’s new patient form was signed 15 June 2020 and notes her health concerns to be “Low back pain” with severity 7 out of 10 (with 10 being the worst imaginable pain) and “Neck pain” with severity 8 out of 10. The claimant notes the pain is sharp and that her neck pain radiates to her hands.
The records include a referral form for Allied Health Services under Medicare for patients with a chronic medical condition and complex needs dated 26 June 2020, prepared by the claimant’s general practitioner.
The records note the claimant attended 13 appointments between 15 June 2020 and 29 August 2020. There are no treatment notes from the clinic.
MyPhysio Baulkham Hills
The records of MyPhysio Baulkham Hills printed 26 July 2024 have been considered. These consist of 13 treatments, commencing 6 June 2020 and concluding 23 March 2021.
The notes dated 6 June 2020 note a history of the presenting illness, which includes “neck P 7 years ago - sitting P burning L shoulder 2min – agg: turning to L – LBP bending+ lifting, walking – nil P limiting – STS P to leg – AM: stiff, first ten steps – PM: - sleep: P pressure on R – 7 /12 c sec, sciatica – 3/12 LBP – nil prev injuries”.
The notes in March 2021 record the claimant was still experiencing neck pain but it was improving. The notes of 9 March 2021 record “Neck is 90% better, just some end range pain and morning stiffness”. The notes of 12 March 2021 note “no issues to complain of, keen to start doing Pilates exs”. It is noted that the claimant has general neck ROM. The final notes, of 23 March 2021, record “sore neck this morning upon waking, mid upper thoracic when looking down”.
Merindah Medical Centre
The records of Merinda Medical Centre printed 8 March 2024 have been considered. A summary of relevant extracts are set out below, noting that not all relevant entries have been included:
(a) on 2 March 2019, the claimant reported positional low back pain. The claimant was pregnant at the time;
(b) on 24 February 2020, the claimant reported pain in her mid thoracic region and was advised to undergo physiotherapy. On examination she had no para spinal tenderness and her range of movements were normal;
(c) on 26 May 2020, the claimant reported neck pain. Relevantly, the notes record “Cervical spondylosis – traction – cervical – physio. Numbness and burning in the hands – left side is”. A CT scan of the neck and cervical spine and a CT scan of the lower back region was requested due to left hand burning and numbness and severe pain in the lower back, noting the claimant was unable to move after bending;
(d) on 23 June 2020, the claimant reported she had commenced physiotherapy and chiropractic sessions, and noted the chiropractic sessions are “helping a bit”;
(e) on 9 July 2020, the claimant reported neck pain, which is getting better with Panadol, back pain on the right side and left side wrist pain;
(f) on 21 August 2020, the claimant reported back pain and that sessions with Charbel Daher (chiropractor) are helpful;
(g) on 19 November 2020, the claimant reported right side hand pain and weakness, and pins and needles, swelling and pain in her hand;
(h) on 2 August 2022, the records note “back pain lumber unfused L5. Nil other. Chiro”, and
(i) on 5 September 2022, it was noted “neck pain with shoulder issues. Had cervical spondylosis – in college”. A CT scan of the neck was requested due to suspected cervical radiculopathy.
Post-accident medical and imaging records
Certificate of capacity / certificate of fitness
The claimant’s certificate of capacity / certificate of fitness dated 19 February 2024 has been considered. In respect of diagnosis of motor accident related injuries, it is noted “Disc bulging at C5/6 and C6/7, disc bulge at C6/7 causing severe C7 nerve root compression, chronic C7 radiculopathy”. The claimant is noted to have capacity for eight hours of work per day, three days per week.
Dr Aman Madan
The clinical records of Dr Aman Madan, general practitioner, have been considered.
Relevantly, the records consist of one entry, dated 14 September 2023, which notes “Whiplash injury – MVA yday - 2:30pm in car, 16 seater van rear-ended her at 80kmh, was wearing seatbelt – car went forward and she managed to park car – was in SUV, photos seen, car intact – air bags not deployed – sore neck, back – L eye ache- worse on straining / reading. no blurred vision – headache. Pmhx – Cspine- ?compression, had traction 10yrs ago”. Under “Examination” it is relevantly noted “C and T spine- no palp tenderness, fun ROM – c/o tenderness L trapediuz. imp: whiplash – no imaging needed”
Dr Nigel Hawkins
The clinical records of Dr Nigel Hawkins, general practitioner, dated 23 January 2024 have been considered. A summary of relevant extracts are set out below, noting that not all relevant entries have been included:
(a) on 23 November 2023, it is noted “past 2 weeks - numbness and pins and needles stated in fingers and now going up to neck – headache today – going to gym and doing weight lifting last month – good shoulder movement – wrist and hands ok – diagnosting [sic] imaging requested CT c spine”. The “Reason for contact” is listed as “Cervical Radiculopathy”;
(b) on 27 November 2023, it is noted the claimant attended for the results of CT of neck. The records include “rang Rouse Hill radiology. Cervical spondylosis. Foramenal narrowing at R c6c7. Mri recommended. Consistent with symptoms. Refer to chiropractor [sic]”. Lyrica 25mg was prescribed;
(c) on 8 December 2023, the claimant reported she was still having pain in her right shoulder, noting “seeing the chiropractor x5 already”. It was noted to “consider steroid injection after ct scan”;
(d) on 13 December 2023, the claimant attended for the results of her MRI scan of the cervical spine. The report of the MRI scan is extracted. The clinical notes also state “pain is just on the R – just inject the R side – therapeutic and diagnostic option of surgery if not lasting effect”, and
(e) on 23 January 2024, it is noted “severe cervical radiculopathy – neck injection not helping – cannot sit for more than 10 min – pain goes down her arm – cannot type – still getting quite severe pain – taking lyrica 25mg occasionally – has tried chiro not on care plan – wants a care plan of physio.” The claimant was referred to Body Focus Wellness Centre.
Helical Health / The Hills Doctors
The records of Helical Health / The Hills Doctors as at 29 February 2024 have been considered.
The claimant first attended the practice on 19 February 2024 and saw Dr Kumari Obeyeskera, general practitioner. The claimant noted ongoing pains and discomfort, and that she was awaiting discectomy and fusion. A certificate of capacity was organised. The report of Dr Pope dated 13 February 2024 was included in the notes.
Newington Chiropractic
The records of Newington Chiropractic, printed 23 March 2024, have been considered.
The records include notes from five appointments from 18 September 2023 to 7 December 2023. The notes record several symptoms including restricted cervical range of motion, pain with neck movements and restricted range of motion in neck, and tingling in right pointer, thumb and middle finger.
Rouse Hill Radiology
The reports of Rouse Hill Radiology have been considered.
On 24 November 2023, the claimant underwent a CT of her cervical spine. Under “Clinical History” it is noted “Past 2 weeks numbness and pins and needles started in fingers but going up neck now. Headache. Going to gym and doing weight lifting last month”. The “Findings” include:
“… At C4/5, there is a small posterocentral disc protrusion with mild central canal stenosis. There is a left uncovertebral osteophyte with mild left foraminal stenosis. There is no significant right foraminal stenosis. At C5/6, there is a broad-based posterior uncovertebral disc osteophyte complex with mild central canal stenosis without significant foraminal stenosis. At C6/7, there is a broad-based posterior osteochondral bar with mild central canal stenosis and moderate right and mild left foraminal stenosis, however assessment is difficult due to streak artefact...”
The CT of the cervical spine concludes “I would suggest, given the patient’s symptomology, more accurate evaluation with an MRI of the cervical spine”.
On 9 December 2023, the claimant underwent an MRI scan of her cervical spine. This included the following findings:
“There is normal cervical spine alignment, no facet joint subluxation or fracture seen. There is no evidence of a Chiari variant. … At the C4/5 level, there is disc desiccation and broad- based disc bulging with mild bilateral foraminal stenosis. There is mild central canal stenosis without cord compression or myelomalacia. No nerve root compression visualised. Facet joints appears unremarkable. At the C5/6 level, there is mild posterior disc bulging with mild to moderate left foraminal stenosis and mild right-sided foraminal stenosis without nerve root compression. There is central canal stenosis without cord compression. The facet joints appear unremarkable. At the C6/7 level, there is broad-based disc-osteophyte complex with a right paracentral/foraminal broad-based disc protrusion with high-grade right and moderate to high-grade left-sided foraminal stenosis with impingement of the bilateral C7 nerve roots, more pronounced on the right side. There is canal stenosis without cord compression. Facet joints appear unremarkable. At the C7/Tl level, there is no notable finding.”
Under “Conclusion” it is noted:
“Disc bulging of C6/7 level with broad-based right paracentral/foraminal disc protrusion with high-grade right and moderate to high-grade left-sided foraminal stenosis and impingement of bilateral C7 nerve roots. If cervical radicular symptoms are present, a CT-guided selective perineural injection may be considered. Central canal stenosis and mild cord compression of C4/5 without myelomalacia.”
Dr Raoul Pope
On 13 February 2024, the claimant attended upon Dr Raoul Pope, neurosurgeon and spine surgeon. Dr Pope prepared a report for Dr Obeyesekera, nothing that the claimant presented with neck pain for four months and right upper limb pain for three months.
Dr Pope’s report notes that approximately three to four weeks after the accident the claimant developed symptoms of radicular component down the right arm in the right triceps, posterior forearm and to the wrist and thumb, forefinger and middle fingers. Her daily symptoms include burning aching pain, pins and needles, numbness and weakness of the arm.
It was noted that chiropractic treatment initially helped but then worsened the claimant’s symptoms. A cortisone injection targeting C7 in December 2023 offered minimal benefit.
Dr Pope’s opinion was the claimant has two levels of disc bulging at C6-7 and C5-6, with C6-7 causing severe C7 nerve root compression and chronic C7 radiculopathy. His strong recommendation is for decompression of the nerve to prevent further deterioration and help with current symptoms.
On 27 February 2024, the claimant attended a follow up consultation with Dr Pope. Dr Pope’s report to Dr Obeyesekera notes the claimant had deteriorated with her symptoms of neck and right upper limb radiculopathy consistent with C7. She was reported to have ongoing weakness and altered sensation in the right upper limb down to the fingers.
On examination, Dr Pope noted a weakness of finger extension and triceps grade 4/5 on the right, 1cm of wasting around the mid biceps on the right side and an absent triceps jerk on the right side and diminished sensation over C7 on the right. Positive Spurling's manoeuvre towards the right and tenderness in the interscapular zone.
Dr Pope reported a large C6-7 disc rupture on the right side with foraminal stenosis, and a C5-6 and C4-5 central disc bulging but minimal foraminal stenosis. There was noted to be some mild foraminal stenosis on the right C5-6 level.
Dr Pope advised he had offered the claimant a C6/7 anterior cervical discectomy fusion to prevent further deterioration and help current symptoms. Dr Pope noted that levels C5-6 and C4-5 may need operating in the future if they worsen over time. Dr Pope noted the claimant wants the surgery so she does not deteriorate.
On 27 February 2024, Dr Pope referred the claimant to Dr Alan Nazha, pain specialist, for opinion and management of the claimant’s pain.
Allied Health Recovery Request
The Allied Health Recovery Requests dated 11 March 2024 and 11 June 2024 of Mrs Silvia Salama of Bodyfocus Wellness Centre has been considered.
Greenlight Activities of Daily Living Assessment Report
The Greenlight Activities of Daily Living Assessment Report dated 24 June 2024 was considered. The symptoms reported by the claimant are recorded as:
“Headaches, radiating down the right side of the body down to her chest and ribs, described as a feeling of "being pulled apart" occurring on average twice a week, exacerbated with prolonged driving and heavy lifting and cold weather, rated as 7-8 on the Visual Analogue Scale for pain where 0 equates to no pain and 10 equates to worst pain imaginable.
Pain and stiffness in the neck.
Numbness down the right arm with numbness in the right thumb and second and third digits, described as constant in nature, rated as a 7-8 on the VAS.
Weakened grip strength on the right.”
The report notes a discussion was conducted with the claimant’s general practitioner, Dr Obeyeskera, on 20 June 2024 in which Dr Obeyeskera advised that the claimant had nil pre-existing conditions. Dr Obeyesekera noted the claimant underwent a CT scan of the cervical and lumbar spine in 2020, but advised that “…as noted by Dr Pope, [the claimant’s] current symptoms are due to the MVA occurring on the 13 September 2023”.
MEDICAL EXAMINATIONS
On 11 April 2025, the claimant was examined by Medical Assessor Gorman at the Commission medical suites.
On 5 May 2025, a Telehealth examination of the claimant was held by Medical Assessor Gorman via MS Teams.
Who attended the assessments
The claimant attended the in-person assessment in the company of her husband. The claimant’s husband was also present at the subsequent Telehealth examination.
History
Personal history and pre-accident history
The claimant is a 41-year-old woman.
She is married. She has two sons aged 13 and 5.
She does not smoke or drink alcohol.
She was born in India where she completed high school. She then completed a master’s degree in computing. She worked in the computing industry for 10 years. She came to Australia in 2015.
She originally was a housekeeper. Her first job was for A to Z Employment Solutions where she worked fulltime for nine months. She then commenced work with the Salvation Army as a Community Engagement Worker, initially working two days per week from home. At the time of the motor vehicle accident, she was working fulltime and would go to the office daily. She had no time off work. Her job mainly involved helping 50 homeless people.
She has had two previous caesarean sections. She has had no medical illnesses.
She indicated that she had previous neck pain in 2019. She said at that time she was attending to her newborn son who was severely affected by eczema. As a result of this, she developed pain in the left side of her neck and left shoulder. The claimant reported that the pain persisted for around eight months. She attended a chiropractor. She fully recovered and did not seek specialist assessment. By mid-2020, she recalled that she was pain free and fully active.
The Panel observes that the “My Physio” notes in the joint bundle record that it was not until her treatments in March 2021 when the claimant was recorded as being significantly better with a normal range of cervical spine motion.
The Panel notes that the pain occurring after the accident is on the claimant’s right side, which is the opposite side to the pain she reported pre-accident. The claimant was certain when asked by the Medical Assessor that her pre-accident pain was on her left side and not her right side. She could only recall, for example, dry needling being on the left side.
On review of the “My Physio” files and the clinical notes of the claimant’s general practitioners, while her pre-accident pain was usually on the left side, the Panel notes there were reports of right-sided pain. When asked about this by the Medical Assessor, the claimant could not recall the episodes of right-sided pain.
History of the motor accident
The claimant was involved in a motor vehicle accident on 13 September 2023 in which she was the driver of her vehicle. She was proceeding along Old Windsor Road, Kellyville. She was slowing in traffic. Suddenly she was hit from behind by a 12-seater van that pushed her vehicle to the right. She was wearing a seatbelt. The car was fitted with headrests. Airbags were fitted and not deployed. She did not collide with any other objects.
Police and ambulance did not attend. The car was towed away and later written off.
History of symptoms and treatment following the motor accident
The following day the claimant attended her local medical officer because of headache and neck pain.
She attended a chiropractor and was provided with massage. She had three treatments which were only of temporary benefit.
After approximately three weeks, the claimant began to experience numbness and pins and needles in her right thumb, index, and middle finger.
A CT scan was performed. She was given painkillers.
A cortisone injection was provided which did not help.
She was then referred to Dr Raoul Pope (Neurosurgeon). The claimant then attended Dr Pope on 13 February 2024. He demonstrated limitation of neck movement. He felt there was weakness of triceps and finger extension and absent triceps jerk on the right side. There were no sensory changes.
Dr Pope reviewed an MRI scan of the claimant. He noted a C6/7 disc herniation extruding on the right lateral recess on C7. He recommended a C6/7 anterior cervical discectomy and fusion.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
She describes pain in her neck which is present all the time. Her pain has been as much as 9/10. It is somewhat better now as she is doing less at home as her husband is not working.
The pain is on the right side of the neck and will radiate down to the shoulder. There is numbness over the right shoulder and particularly in the thumb, index and middle fingers on the right side.
The pain is made worse with activity. She is not driving.
Current and proposed treatment
She takes Lyrica 75mg three times daily. She takes Palexia 50mg only occasionally.
She takes Nurofen or Maxigesic as required.
She is no longer having physiotherapy.
Clinical Examination
General presentation
She was a well looking woman who walked with a normal gait. She had to stand after 10 minutes.
She is 157 cm tall and weighs 68.8 kg. She was 58kg before the accident.
Cervical spine
On examining her neck muscle guarding was present.
On turning to the right and laterally flexing her neck she had tingling in the fingers.
There was no wasting of the muscle of the upper limb. Both arms measured 29cm in circumference 10cm above the lateral epicondyle. The right arm measured 23.5cm (5cm below the lateral epicondyle) and the left measured 23cm.
There was a full range of neck movement. Neck flexion, extension was normal. Lateral flexion left and right was normal. Rotation left and right was normal.
Power and tone were normal. Biceps, triceps, and supinator jerks were present and equal.
There was a loss of sensation in the right upper limb along the radial aspect of the arm to the thumb, index and middle finger. Sensation of the left upper limb was normal.
Consistency on Presentation
The claimant was consistent and cooperative throughout both presentations.
Summary of relevant imaging
The MRI cervical spine performed by Rouse Hill Medical Imaging on 9 December 2023 showed disc bulging of C6/7 level with broad-based right paracentral foraminal disc protrusion with high-grade right and moderate to high-grade left-sided foraminal stenosis and impingement of bilateral C7 nerve roots.
PANEL’S DETERMINATION
The Panel review is not limited to a review of only that aspect of the first instance medical assessment 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, comprised of two specialist medical practitioners, is required to form its own opinion on the medical question in dispute by reflecting on the panel members’ professional judgment; it is not to choose between competing opinions, nor to assess the correctness of such opinions.[5]
[5] Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.
As the High Court noted, with respect to a medical panel:
“The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”.[6]
[6] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2012] HCA 43 at [47].
As was stated in Keen, the function of a medical panel is neither arbitral or adjudicative; it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
Does the proposed treatment relate to the injury caused by the accident?
A question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”.
There is no issue that the surgery is a form of treatment and care for the purposes of s 3.24 of the MAI Act.
For the accident to have been causative of the need for the surgery, the accident has to have made at least a material contribution to the need for the surgery: AAI Ltd v Phillips [2018] NSWSC 1710 (Phillips) at [29].
Causation of injury is required to be established on the balance of probabilities. The claimant is not required to establish causation to the level of medical certainty: Briggs v IAG Ltd (t/as NRMA Insurance) (2024) 106 MVR 203; [2024] NSWSC 3 at [43]-[44].
The accident was a major accident. The claimant’s vehicle was written off. Following this, she had sustained pain in her neck with radicular complaint developing along the distribution of the right C6 and C7 nerve roots. Imaging demonstrated compression of the C7 nerve root from the C6/7 disc. The Panel finds that disc protrusion could have been caused by an accident of this severity.
The Panel finds that, although the claimant had previous neck pain, it was usually left-sided and that it had resolved by the time of the time of the accident in 2023.
The claimant’s radicular pain on the right side developed over three to four weeks following the accident. The Panel considers this is not unusual as the pain develops gradually with increased ischaemia and release of cytokines from the disc irritating the nerve. The pain need not develop acutely.
The claimant was asked about her visits to Dr Nigel Hawkins. Specifically, the claimant was asked by the Medical Assessor about her consultation on 23 November 2023 where Dr Hawkins’ clinical notes record that the claimant had developed “pins and needles” following a gym workout with weightlifting. Both the claimant and her husband were adamant that the claimant had not been to her personal trainer in the months after the accident. The claimant recalls that she may have asked Dr Hawkins “could she start” gym work and weightlifting again. She noted that, while her English is good, on occasions she can have difficulty communicating correctly. Medical Assessor Gorman agreed that her English is good but spoken with a strong accent and accepted there could be a miscommunication. The claimant emphasised that her weightlifting was only with light weights before the accident and supervised by her personal trainer.
The Panel is satisfied that the claimant did not suffer injury following the accident as a result of a gym workout or weightlifting.
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.
In the Panel’s opinion, the need for C6/7 anterior cervical discectomy and fusion could have been caused by the accident. On balance, based on the evidence before it and the reasons set out above, it is the clinical judgment of the Medical Assessors that the surgery relates to an injury caused by the accident.
The Panel finds that the surgery, being C6/7 anterior cervical discectomy and fusion, relates to injury caused by the accident.
Is the proposed treatment reasonable and necessary in the circumstances?
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.
Indicia relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled and 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.[7]
[7] Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88].
It is noted, however, that the “reasonable and necessary” test differs from the WC Act test and other legislation which 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 our 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.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. It may be reasonable and necessary for a claimant to have treatment such as surgery to alleviate symptoms from an injury or condition but if that injury or condition was not caused by the accident it will be disallowed on the basis it does not relate to the injury caused by the accident.
The claimant has had an episode of injury and a demonstrated disc lesion compressing the C7 nerve root which is symptomatic. There are signs of radiculopathy with sensory change corresponding to the C6/7 dermatomes and a positive foraminal compression test. Given her clinical symptoms and their persistence combined with the MRI findings, the Panel finds that a C6/7 discectomy and spinal fusion would be considered appropriate.
The Panel considers that the proposed surgery will relieve pressure on the C7 nerve root and thereby relieve the claimant’s pain. It will also stop the nerve compression further injuring the nerve. If the nerve root compression persists, then motor fibres in the nerve will be compromised, causing weakness.
The Panel notes that Dr Raoul Pope, the claimant’s neurosurgeon, emphasised the need for decompression surgery to reduce the chance of a chronic pain syndrome. Neuropathic radicular pain persisting even after nerve decompression is more likely if the nerve decompression has been longstanding.
The Panel considers that the fusion procedure will reduce any chance that instability at the C6/7 level will cause ongoing pain. The fact the disc protrusion has occurred indicates weaking of the disc at that level, which is likely causing instability at that level.
The Panel notes the claimant has tried conservative treatment, such as cortisone injections and chiropractic treatment, which have been unsuccessful.
The Panel finds the surgery is reasonable and necessary in the circumstances.
CONCLUSION AND CERTIFICATION
For the above reasons, the Panel finds that the C6/7 anterior cervical discectomy and fusion:
(a) relates to injury caused by the accident; and
(b) is reasonable and necessary in the circumstances.
The Panel confirms the certificate of Medical Assessor Truskett dated 23 October 2024.
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