Allianz Australia Insurance Ltd v Vella
[2021] NSWPICMP 214
•10 November 2021
| DETERMINATION OF REVIEW PANEL | |
| ITATION: | Allianz Australia Insurance Ltd v Vella [2021] NSWPICMP 214 |
| CLAIMANT: | John Saviour Vella |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr Drew Dixon Dr David McGrath |
| DATE OF DECISION: | 10 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- This was a treatment and care dispute concerning operative procedures to the right shoulder and lumbar spine and 13 other wide-ranging categories of treatment resulting from a motor accident on 18 April 2016; the claimant had prior surgery to the L3/4 disc in 2011 and subsequent treatment; it was alleged that he injured his neck, right shoulder and lumbar spine in the 2016 motor accident; Held- the claimant was reviewed by a number of doctors in 2016 for the neck and right shoulder and these parts were referenced in the claim form; the treatment for the lumbar spine commenced in late 2016; there was no medical reason why the claimant would have sustained a disc trauma to L2/3 in the motor accident and a late complication of an unrecognised acute lumbar spine injury was medically unlikely; the previous surgery to the adjacent disc and subsequent heavy work and a complete lack of low back complaint were matters suggestive of no low back injury from the motor accident; based on the contemporaneous complaints, absence of prior complaint, continuity of complaints and supporting opinion of treating specialists, the Panel was satisfied that the claimant suffered a tear of the supraspinatus tendon in the motor accident; the motor accident need only be a material contribution to the need for treatment; AAI Ltd v Phillips applied; Panel accepted that the shoulder surgery and its consequences were related to the motor accident; discussion about the meaning of reasonable and necessary in the circumstances and a poor outcome does not mean that the treatment was not reasonable and necessary in the circumstances; Diab v NRMA Ltd applied; further discussion concerning the vague nature of 13 general and non-specific treatment disputes being referred for medical assessment which appeared inconsistent with the provisions of the Personal Injury Commission Act 2020 and insurer’s obligations; original medical assessment revoked in respect of the treatment relating to the low back. |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Treatment and Care
Review Panel Assessment of Treatment and Care and
Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999
The Review Panel revokes the certificate dated 17 March 2021 and issues the following certificates.
The following treatment and care:
Past right shoulder surgery – right rotator cuff repair, subacromial decompression and acromioplasty on 2 April 2018 performed by Dr Herald.
Whether any past CT guided cortisone injections for the neck and right shoulder from the date of accident to date of MAS assessment.
Whether any use of topical ointments from the date of the accident to the date of the MAS assessment.
Whether any past GP reviews from the date of accident to date of MAS assessment.
Whether any past radiological investigations including MRI’s, x-rays, CT scans and ultrasounds of the neck and right shoulder from the date of the accident to the date of the MAS assessment.
Whether any consumption of analgesic medication - baclofen, acimax and Panadol from the date of the accident to the date of the MAS assessment.
Whether any consumption of anti-depressant medication - amitriptyline, alphapharm from the date of the accident to the date of the MAS assessment.
Whether any consumption of anti-inflammatory medication from the date of the accident to the date of the MAS assessment.
Whether any past hydrotherapy treatment from the date of the accident to the date of the MAS assessment.
Whether any past physiotherapy sessions from the date of the accident to the date of the MAS assessment.
Whether any past massage therapy from the date of the accident to the date of the MAS assessment.
Whether any past participation in the REGAIN pain management program from the date of the accident to the date of the MAS assessment.
Whether any past specialist consultations with orthopaedic surgeons, neurosurgeons from the date of the accident to the date of the MAS assessment.
RELATES TO THE INJURY caused by the motor accident.
The following treatment and care:
The past surgery – L2/3 laminectomy and discectomy on 23 August 2017 performed by Professor Sheridan relating to the lower back injury.
Any past CT guided cortisone injections for the back from the date of accident to date of MAS assessment.
Any past radiological investigations including MRI’s, x-rays, CT scans and ultrasounds of the back from the date of the accident to the date of the MAS assessment.
DOES NOT RELATE TO THE INJURY caused by the motor accident.
Reasonable and Necessary in the circumstances
Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999
The following treatment and care:
Past surgery – L2/3 laminectomy and discectomy on 23/08/2017 performed by Professor Sheridan relating to the lower back injury.
Past right shoulder surgery – right rotator cuff repair, subacromial decompression and acromioplasty on 2/04/2018 performed by Dr Herald.
Whether any past CT guided cortisone injections for the neck, right shoulder and back from the date of accident to date of MAS assessment.
Whether any use of topical ointments from the date of the accident to the date of the MAS assessment.
Whether any past GP reviews from the date of accident to date of MAS assessment
Whether any past radiological investigations including MRI’s, x-rays, CT scans and ultrasounds of the neck, right shoulder and lower back from the date of the accident to the date of the MAS assessment.
Whether any consumption of analgesic medication - baclofen, acimax and Panadol from the date of the accident to the date of the MAS assessment.
Whether any consumption of anti-depressant medication - amitriptyline, alphapharm from the date of the accident to the date of the MAS assessment.
Whether any consumption of anti-inflammatory medication from the date of the accident to the date of the MAS assessment.
Whether any past hydrotherapy treatment from the date of the accident to the date of the MAS assessment.
Whether any past physiotherapy sessions from the date of the accident to the date of the MAS assessment.
Whether any past massage therapy from the date of the accident to the date of the MAS assessment.
Whether any past participation in the REGAIN pain management program from the date of the accident to the date of the MAS assessment.
Whether any past specialist consultations with orthopaedic surgeons, neurosurgeons from the date of the accident to the date of the MAS assessment.
IS REASONABLE and NECESSARY in the circumstances.
REASONS
Background
Mr John Vella suffered injury in a motor accident on 18 April 2016 when another vehicle was illegally overtaking on the right side at speed and collided with Mr Vella’s driver’s side door spinning his truck around.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Singh any damages and/or statutory compensation entitlements under the Motor Accidents Compensation Act 1999 (the MAC Act).
The issues in dispute are whether the following treatment was “reasonable and necessary and necessary in the circumstances” and “relates to an injury caused by the motor accident”. The treatment was described as follows:
“Whether the past surgery – L2/3 laminectomy and discectomy on 23/08/2017 performed by Professor Sheridan relating to the lower back injury.
Whether the past right shoulder surgery – right rotator cuff repair, subacromial decompression and acromioplasty on 2/04/2018 performed by Dr Herald.
Whether any past CT guided cortisone injections for the neck, right shoulder and back from the date of accident to date of MAS assessment.
Whether any use of topical ointments from the date of the accident to the date of the MAS assessment.
Whether any past GP reviews from the date of accident to date of MAS assessment
Whether any past radiological investigations including MRI’s, x-rays, CT scans and ultrasounds of the neck, right shoulder and lower back from the date of the accident to the date of the MAS assessment.
Whether any consumption of analgesic medication - baclofen, acimax and Panadol from the date of the accident to the date of the MAS assessment.
Whether any consumption of anti-depressant medication - amitriptyline, alphapharm from the date of the accident to the date of the MAS assessment.
Whether any consumption of anti-inflammatory medication from the date of the accident to the date of the MAS assessment.
Whether any past hydrotherapy treatment from the date of the accident to the date of the MAS assessment.
Whether any past physiotherapy sessions from the date of the accident to the date of the MAS assessment.
Whether any past massage therapy from the date of the accident to the date of the MAS assessment.
Whether any past participation in the REGAIN pain management program from the date of the accident to the date of the MAS assessment.Whether any past specialist consultations with orthopaedic surgeons, neurosurgeons from the date of the accident to the date of the MAS assessment.”
Pursuant to s 58 of the MAC Act, various matters are medical assessment matters including whether “the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and whether “such treatment relates to the injury caused by the motor accident”.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[1] Section 60 of the MAC Act.
The disputes were referred to Medical Assessor James Bodel who issued a medical assessment certificate dated 17 March 2021. Medical Assessor Bodel concluded that the entire treatment was both reasonable and necessary and relates to the motor accident.
The review
The application for referral of the medical assessments to a review panel were made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 63(7) of the MAC Act.
On 8 July 2021, the President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[4] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The insurer provided a comprehensive bundle and
Mr Vella’s legal practitioners advised the Commission that there were “no further documents”.
We observe that s 42 of the PIC Act provides that the guiding principle for the PIC Act and the Commission rules is to facilitate the “just, quick and cost effective resolution of the real issues in the proceedings”.
The directions to produce respective bundles are consistent with the objectives of the Commission. The provision of relevant documents enables a Panel to properly undertake their functions without the assistance of legal practitioners and proper compliance with its Directions. These observations are made generally to the legal profession and are not limited to the legal practitioners acting in this matter.
The Panel issued a further Direction dated 22 October 2021 requesting the parties to make submissions on whether there was any objection to the review proceeding in the absence of examination.
The parties’ advised the Commission that they had no objection to this course.
Statutory provisions
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts. The insurer otherwise referred to clause 13.3 of the Medical Assessment Guidelines which simply repeats s 58.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[8]. In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the Act.
Submissions
The insurer made submissions alleged material error in the assessment made by the Medical Assessor and a request that the matter be referred to a review panel. Insofar as the submissions relate to the task to be undertaken by the Review Panel on review, the insurer submitted:
(a) the clinical notes record complaints of back pain in January 2016 contradicting the claimant’s history that there was full recovery prior to the motor accident;
(b) there was a paucity of lumbar spine complaint in the period following the motor accident;
(c) Dr Dalton declined to diagnose a lumbar spine injury and felt that the cervical spine injury had resolved at the time of his examination. The doctor opined that the shoulder surgery was not reasonable and necessary;
(d) Dr Dalton identified a subsequent work injury as causative of the lumbar spine surgery;
(e) no complaint of lumbar spine pain was made to Dr Breit in early 2017. The doctor did not support any future treatment and did not endorse the treatment received until that time;
(f) Dr Giblin made no diagnosis of lumbar spine injury;
(g) Mr Milazzo, a SIRA appointed consultant physiotherapist, explicitly discouraged the concurrent receipt of a number of treatment modalities;
(h) that certain treatments were not causally related to the accident and reasonable and necessary because they were only of temporary benefit such as physiotherapy, hydrotherapy and medication. Certain treatments could not be reasonable and necessary if they provided no benefit, and
(i) if the insurer’s submissions are accepted, a review panel, in rectifying the errors made by Assessor Bodel, would decline to find causation of the right shoulder, neck and back injuries and therefore determine that the plethora of past treatment received (including in particular the lumbar spine fusion and right shoulder rotator cuff repair) were not casually related to, nor a reasonable and necessary consequence of, the subject accident.
In its initial submissions for the Medical Assessment, the insurer denied that there was a lumbar spine injury and referred to the prior work injury and subsequent surgical treatment from 2008 to 2011.
The insurer noted no lumbar spine complaint to the general practitioner for five months after the motor accident and that the initial referral to Professor Sheridan in September 2016 was for cervical symptoms.
Dr Breit noted the absence of relevant history in concluding that the lumbar spine was not injured in the motor accident. Dr Dalton reached a similar conclusion.
The insurer also referred to the opinion of Dr Dalton which was critical of the decision to perform the shoulder surgery. It submitted that any accident-related symptoms had resolved “or were superseded by the adhesive capsulitis [which resulted] from the right shoulder surgery”.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
There are various medical reports relating to the lumbar spine injury in June 2008 and subsequent surgery performed by Professor Sheridan to the L3/4 disc. In late 2011
Dr Mathew Giblin, Orthopaedic Surgeon, opined that Mr Vella was unfit for work involving repetitive bending, heavy lifting or prolonged standing and assessed ongoing signs and symptoms of radiculopathy. Dr Miniter, Orthopaedic Surgeon, expressed a similar view in a report dated 28 November 2011.
The clinical note of Dr Michael Sorani, General Practitioner, dated 30 January 2016 referred to localised right lower back pain with no pins or needles in the lower limbs.
The clinical note of Dr Sorani on the day following the motor accident refers to complaints of right shoulder and neck pain.
A workcover certificate completed by Dr Michael Sorani dated 30 May 2016 referred to injury to the right shoulder and neck from the motor accident on 18 April 2016. Further certificates dated 27 June 2016, 18 July 2016, 16 August 2016, 5 September 2016, 12 September 2016, 23 September 2016, 7 October 2016 and 21 October 2016 are in similar terms. The absence of reference to the lumbar spine in the certificates is consistent with an initial absence of reference to that body part in the general practitioner’s clinical notes and complaint to the general practitioner during this period.
An ultrasound and x-ray of the right shoulder dated 19 April 2016 is reported as showing a partial thickness tear of the supraspinatus tendon with no associated fracture.
On 16 May 2016, Dr Sorani referred Mr Vella for physiotherapy for work related injury to the right shoulder. On 30 May 2016 Mr Pleffer, Physiotherapist, diagnosed right shoulder pain and impingement.
Mr Vella first consulted Dr Dave, Orthopaedic Surgeon, on 21 July 2016. The doctor noted right shoulder pain following the motor accident with no relevant pre-existing history. Ongoing pain and restriction of movement suggestive of impingement was noted at examination. Dr Dave referred Mr Vella for an MRI scan of the right shoulder.
An MRI scan of the right shoulder dated 26 July 2016 showed a partial tearing of the supraspinatus.
Dr Dave reviewed Mr Vella following the provision of the MRI scan and provided a further report dated 4 August 2016. Mr Vella complained of pain from the top of the right shoulder to the mid-arm region with signs and symptoms consistent with the MRI scan. Injections were rejected because Mr Vella stated that he had poor results from prior back injections. Mobic and physiotherapy were the initial treatment options, and surgery was considered if symptoms failed to improve.
A motor accident personal injury claim form signed by Mr Vella on 5 August 2016 referred to the injuries from the motor accident being the right shoulder, neck and psychological. A medical certificate completed by Dr Sorani was attached to the claim form and referred to the neck and right shoulder injuries.
A CT scan of the cervical spine dated 19 August 2016 showed spondylotic changes at C5/6 with possible impingement on the C6 nerve root.
A physiotherapist report signed by Grant Pleffer dated 22 September 2016 referred to neck and right arm pain.
An MRI scan of the cervical spine dated 28 September 2016 refers to cervical spondylosis and discovertebral degenerative changes at C5/6 associated with bilateral C6 foraminal root compression. Mr Vella underwent a right shoulder injection at that time.
Dr John Ireland, Orthopaedic Surgeon, examined Mr Vella and provided a report dated 22 September 2016. The doctor recorded a history of right shoulder and neck pain following the motor accident. Dr Ireland stated:
“I think at this stage, further investigations need to be carried out on his neck.
I note that his CT scan suggests some C6 nerve root impingement and an MRI would be beneficial and I would recommend that he perhaps go back and see Mark Sheridan who he has seen before about his back.As to the shoulder, there is some evidence of subacromial bursitis and impingement and it may well be that he will need an arthroscopy and acromioplasty but I think this would probably be of lesser importance than resolving the situation with his neck.”
By letter dated 30 September 2016, Dr Sorani referred Mr Vella to Professor Sheridan for “opinion and management of cervical discopathy – work related”. Included in the past history was reference to lumbar prolapse and more recently, supraspinatus tear in April 2016.
Dr Peter Giblin, Orthopaedic Surgeon, was qualified by Mr Vella’s lawyers and provided a report dated 8 November 2016. Dr Giblin noted a history of a week off work with consultations with the general practitioner for neck and right shoulder pain. As part of the medical history, Dr Giblin noted a low back injury in 2011 resulting in a discectomy.
Dr Giblin diagnosed soft tissue injuries to the cervical spine and right shoulder caused by the motor accident.
Dr Leonard Lee, Psychiatrist, was qualified by Mr Vella’s lawyers and provided a report dated 7 November 2016. The doctor recorded presenting complaints of severe neck and right shoulder pain with subsequent onset of depression, flashbacks and nightmares.
Mr Vella underwent a CT-guided right C6 perineural injection in December 2016.
Mr Vella first consulted Professor Sheridan after the motor accident on 23 November 2016. At that time the doctor noted Mr Vella was “doing reasonably well from his lower back problems until his accident in April” and since that time he had persisting neck pain, right shoulder pain and “worsening of his lower back and leg pain”. An MRI of the low back was organised.
An MRI scan of the lumbar spine referred to lower back pain and leg pain.
Dr Ganeshan concluded that the disc desiccation had progressed since the November 2009 study and there was a progressive disc protrusion at L2/3.
Associate Professor Sheridan stated in January 2017 that an injection into the neck had settled symptoms “fairly well”. The MRI scan of the back was consistent with current pain.
A statement was made by Mr Vella’s eldest son dated 12 January 2017. Mr Nathan Vella then stated that he understood his father had sustained injuries to the neck, right shoulder and back in the motor accident as well as a psychological reaction to the accident.
In February 2017 Associate Professor Sheridan noted a recent injection had given some relief but recent heavy lifting had cause further recurrence of back and leg pain.
In January 2017 Mr Vella was referred for functional capacity assessment to gain an objective view of Mr Vella’s functional capacities.
Dr Robert Breit, Orthopaedic Surgeon, was qualified by the insurer and provided a report dated 28 March 2017. Dr Breit noted a history of neck and right shoulder pain following the motor accident and stated that he was “unable to determine when this back pain actually started, he was somewhat evasive”.
Dr Breit accepted that there were soft tissue injuries to the neck and right shoulder but that there was no injury to the low back. The doctor considered that some of the past physiotherapy had been excessive, and that Mr Vella should be taught a home exercise program.
Dr Seamus Dalton, Sports Physician, was qualified by the insurer. Dr Dalton initially concluded that Mr Vella suffered soft tissue injuries to the neck and right shoulder and that there had been a development of features of chronic adjustment disorder in association with chronic pain. The doctor did not accept that there was injury to the lumbar spine.
Dr Dalton did not have Dr Herald’s records and expressed surprise that right shoulder surgery was undertaken. He felt that there was a “strong probability that this man will have a poor result due to exacerbation of his pre-existing pain disorder and the development of post-surgical capsulitis”. Dr Dalton accepted that Mr Vella had developed chronic pain with significant psychological issues which made management of physical symptoms difficult.
In a report dated 9 December 2019, Dr Dalton observed that current complaints did not significantly differ from the previous assessment in mid-2018. Dr Dalton opined that that there was “no underlying pathology in Mr Vella’s right shoulder which was causally related to the subject accident and that the surgery performed by Dr Herald “was not reasonably necessary in any event”. The basis of that opinion appears to be the poor outcome from surgery and that it was “unlikely to be beneficial in any event”.
Dr Dalton referred to Mr Milazzo’s comments and opined that Mr Vella “has had multiple opinions and treatments, most of which are not reasonable or necessary”.
A report dated 13 April 2017 noted that Mr Vella had commenced the REGAIN treatment program as part of a multidisciplinary pain management program.
Dr Paul Edwards, Gastroenterologist reported in July 2017 that Mr Vella had severe abdominal pain following consumption of large doses of meloxicam and voltaren. The likely diagnosis was NSAID induced gastric injury with a recommendation that NSAIDs be reduced. In August 2017 Dr Edwards noted improvement with proton pump inhibitors, carafete and reduced consumption of NSAIDs.
Dr Jonathan Herald, Orthopaedic Surgeon, provided a report dated 14 August 2017. The doctor diagnosed biceps tendinitis and rotator cuff tear and then recommended arthroscopic repair.
In March 2018 Dr Herald noted good recovery from the back surgery although Mr Vella complained of ongoing neck and right shoulder problems. Dr Herald again recommended shoulder arthroscopy and biceps tenodesis. At the pain clinic in April,
Mr Vella complained of persistent shoulder and neck pain. The doctor recommended pain medication as an anti-neuropathic agent.
This surgery was performed later in April 2018. At surgery Dr Herald identified a high-grade partial thickness supraspinatus rotator cuff tear.
In May 2018 Dr Herald noted improvement following surgery. The doctor noted an allergy to some medication and changed this to Panadeine forte. Further improvement was noted in June 2018.
In October 2018 Dr Herald note that the neck was affecting recovery. There was also a delay with physiotherapy following surgery which attributed to the slow progress and development of a secondary frozen shoulder. In November 2018, Dr Herald noted that Mr Vella was doing an exercise programme but still had a lot of inflammation and pain. Deep tissue massage and an anti-inflammatory cream were recommended at that time.
Dr James Wu, Pain specialist, examined Mr Vella in June 2018. The consultation related to right shoulder pain following surgery. In September 2018 Dr Wu noted persistent right shoulder pain, right sided neck pain and right arm pain. Physiotherapy and hydrotherapy had commenced and ongoing psychological issues with sleep disturbance were noted. Mr Vella was then seeing a clinical psychologist.
Review at the pain clinic in December 2018 noted persistent right shoulder pain with restricted movement. Ongoing physiotherapy, hydrotherapy and clinical psychological management were recommended by Dr Wu. Dr Wu made similar recommendations in March 2019.
In May 2019 Dr Wu recommended an ongoing multidisciplinary pain management approach due to persistent widespread pain.
A physiotherapy consultant in a report dated 13 June 2019 recommended that
Mr Vella’s treatment is not optimised by multiple health providers and that additional hydrotherapy support and exercise physiology cease. The consultant noted high levels of constant and persistent pain and recommended ongoing physiotherapy and pain management.
In September 2019 Dr Wu noted ongoing right arm pain associated with coldness. The doctor recommended ongoing multidisciplinary pain management approach with ongoing psychological sessions.
Dr Lee provided a further report dated 3 January 2020. He opined that Mr Vella suffered from chronic pain, anxiety, depression and general impairment of functioning caused by the motor accident.
Dr Dias, Occupational Physician provided a report dated 14 October 2019. The doctor noted an extensive work history of labouring work including the work with the pre-injury employer. The pre-injury employment was as a truck driver and general labourer working long hours involving repetitive heavy lifting and heavy manual handling of items. Past medical history included a work injury to the lumbar spine around 2009 which required an L3/4 microdiscectomy procedure performed by Dr Sheridan in 2010.
The doctor recorded that Mr Vella made a full recovery by 2011 with no further ongoing lumbar symptoms.
Dr Dias referred to the motor accident and noted that Mr Vella sustained an acute musculoligamentous strain to the lumbar spine although the “lower back symptoms were overshadowed by the pain he was felling in his neck and right shoulder at the time of the accident”.
Dr Dias recorded that Mr Vella was placed on light duties at work after the accident but “essentially performed his normal duties as a driver and labourer”. Mr Vella’s employment was terminated in September 2016.
Dr Dias opined that Mr Vella sustained an aggravation of degenerative cervical spondylosis and associated disc protrusion at C5/6, an aggravation of pre-existing degenerative lumbar spondylosis with an associated disc protrusion at L2/3 resulting in decompressive surgery in August 2017. In relation to the right shoulder, Mr Vella sustained a partial thickness supraspinatus tendon tear and underwent surgery in April 2018. He developed a chronic right shoulder postoperative adhesive capsulitis.
RE-EXAMINATION
The Panel advised the parties by direction dated 22 October 2021 that it was of the view that it can determine the Review without a further examination of Mr Vella. The parties were invited to provide written submissions if they objected to this course.
Mr Vella advised that he had no objection to that course.
The Panel determined that the review could proceed without a further examination. That decision was made in the course of a serious pandemic where the matter had already suffered delays. Further, the issue which we have determined adverse to
Mr Vella was made based on a thorough review of the documentary evidence pertaining to the issue of lumbar spine injury. The insurer’s submission on that issue was well documented and Mr Vella’s position was considered in accordance with the most favourable version he had provide to various legal practitioners.
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned.
Medical Disputes before the Panel
A treatment dispute arose and was then referred to Medical Assessor Bodel. The dispute sought answers to the specific surgeries to the lumbar spine and right shoulder and general non-specific questions on 13 other forms of treatment.
The issue on the other forms of treatment commenced with the words “Whether any past”, referred to a specific type of treatment, then finished with a time range from the “date of the accident to the date of the MAS assessment”, that is over a period of some five years. It is understood that the reference to the “date of the MAS assessment” is that undertaken by Medical Assessor Crane as set out in his assessment dated 12 May 2021.
The 13 questions are vague and make a proper response difficult. The wording “any past” with reference to a particular treatment indicates a positive response is required if any of the treatment was either causatively related to the motor accident or otherwise “reasonable and necessary”. The different injuries, “neck, right shoulder and back” otherwise raises the issue of whether the Panel is required to provide distinct answers to the different injuries, or whether a positive response to one injury satisfies a response to the question posed.
It is accepted that the MAC Act provides that medical disputes, upon application by either party, are to be referred to a Medical Assessor.
The Panel considers that the 13 questions of “any past” treatment over a five-year period are so vague as to create an inability by the Panel to provide proper responses. In the present dispute we have interpreted those words to mean that if any of the past treatment satisfies the issue, then a positive response is required to the question of whether “any past treatment” is either reasonable and necessary and/or caused by the motor accident.
We otherwise observe that the conduct of raising numerous medical disputes is potentially contrary to an insurer’s general duty to resolve claims expeditiously. These disputes, often subject to review, will inevitably create delay and is inconsistent with an expeditious resolution of matters.
The Panel otherwise refers the insurer to s 115A of the MAC Act which provides:
“It is a condition of a licence granted under Part 7.1 that the insurer comply with relevant provisions of –
(a) the Personal Injury Commission Act 2020 and the regulations under that Act, and
(b) the Commission rules.”
The objects of the Commission include the encouragement of early dispute resolution. In particular, the Commission is required to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[10]
[10] Section 3 of the PIC Act.
These comments are directed to parties generally including the legal practitioners acting in matters before the Commission. They are not specifically directed to the parties in this case who were not provided with warning and/or otherwise provided with an opportunity to respond to these comments. However, the wording of the general 13 medical disputes in this matter is far from satisfactory.
The Commission’s decisions are now published, and it is intended that these observations of past practice be brought to the attention of legal practitioners practising in the jurisdiction. Insurers should otherwise seriously consider and ensure that the treatment disputes referred to medical assessors, and on review, by Review Panels, be clear, concise and comply with the objects of the PIC Act.
Lumbar spine injury
The submissions that Medical Assessor Bodel erred or did not err are relevant to the issue of whether the President’s delegate was satisfied that they had “reasonable cause to suspect that the medical assessment was incorrect in a material respect”. The submissions are also a guide to what is in dispute and what is not disputed in the reasons provided by the relevant Medical Assessor at first instance.
There are no contemporary records of low back symptoms following the motor accident. That observation is not determinative of causation of injury to the lumbar spine.
Several Supreme Court authorities have discussed jurisdictional error by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence of record in contemporaneous notes.
In Norrington v QBE Insurance (Australia) Ltd[11] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[11] [2021] NSWSC 548 (Norrington).
The Court stated:[12]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
[12] Norrington at [31].
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[13] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[14]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[15]).
[13] [2016] NSWCA 229 at [64]-[66].
[14] [2004] NSWCA 34 at [35] (Davis).
[15] [2014] NSWSC 888 (Bugat) at [31]-[32].
Mr Vella did not assert in the claim form which he completed on 16 August 2016 that he injured his low back. The existence of complaint in the claim form is relevant to whether a body part was injured: Bugat. Logically, the absence of reference to injury to this body part in the claim form completed by Mr Vella four months after the motor accident is also relevant.
The general practitioner prepared a number of certificates in the period shortly following the motor accident and did not attribute any low back symptoms to the motor accident. Further, the general practitioner recorded low back symptoms prior to the motor accident as recently as January 2016.
Physiotherapy records following the motor accident referred to right shoulder restrictions and do not refer to low back treatment. The restrictions mentioned by the physiotherapist at that time are inconsistent with a low back injury.
The records following the motor accident are fairly detailed in respect of specific treatment. The warnings posited in such cases as Davis are unlikely to explain an absence of reference to any low back symptoms.
Mr Vella has a past history of low back symptoms and surgery at the L3/4 level which is adjacent to the surgery performed by Professor Sheridan in 2017. Medical science supports a conclusion that adjacent level disc disease commonly occurs following single level disc surgery. This is because the original surgery weakens the disc and places stress on the adjacent levels of the spine.
Further, the history recorded by various doctors is that Mr Vella returned to heavy lifting work for a period of time following the motor accident and before his employment was terminated. Indeed, Professor Sheridan referred to a lifting incident at work subsequent to the accident, albeit in the context of aggravating lumbar spine symptoms. In this context, symptoms arising from the L2/3 level approximately six years after the initial surgery are not unexpected.
The referral to Professor Sheridan in late 2016 was originally suggested by Dr Ireland and then associated with cervical spine symptomatology. Professor Sheridan then undertook investigations into the lower back and subsequently performed surgery to the L2/3 disc.
The nature of the motor accident is relevant to the determination on causation. In QBE Insurance (Australia) Ltd v Shah[16] referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[17] between the motor accident and the alleged injury. His Honour noted:[18]
“Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.”
[16] [2021] NSWSC 288 (Shah).
[17] Shah at [36].
[18] Shah at [16].
We return to these observations in respect of the injury to the right shoulder. However, there are no self-evident medical reasons why Mr Vella may have sustained disc trauma to the L2/3 disc in the motor accident. A late complication of an unrecognised acute lumbar spine injury is medically unlikely.
In the present case there was previous surgery to the adjacent disc, subsequent heavy work and a complete lack of any low back complaint recorded by the treating doctors for a significant period and otherwise not asserted by Mr Vella in his claim form.
We observe that Medical Assessor Crane assessed permanent impairment of the lumbar spine in his report dated 12 May 2021. Dr Crane then stated:
“I make no comment concerning causation, as this has been found from the Medical Assessment Certificate of Dr James Bodel, provided for the Personal Injury Commission, dated 17 March 2021."
That comment appears to suggest that Medical Assessor Crane did not consider causation of the lumbar spine despite making an assessment of that body part as he stated it had been determined by Medical Assessor Bodel in this dispute.
Both Dr Giblin and Dr Lee were qualified by Mr Vella and provided reports in 2016. These doctors did not comment on the lumbar spine being injured in the motor accident.
Dr Dalton and Dr Breit were subsequently qualified by the insurer. Their opinions do not support a conclusion that there was any lumbar spine injury caused by the motor accident.
Medical Assessor Bodel accepted the causative link between the motor accident and the pathology at L2/3. The doctor did not consider the absence of recorded complaint, the recent history preceding the motor accident of low back complaint and acted on a history that Mr Vella “has never been able to return to work”.
Dr Dias subsequently supported a conclusion that Mr Vella injured his lumbar spine in the motor accident. His opinion is based in part on a successful recovery following the previous lumbar spine surgery. That observation is inconsistent with the January 2016 clinical note.
Dr Dias also opined that the injuries to the neck and right shoulder overshadowed the low back injury. Whilst that is always a possibility, it is a poor explanation in circumstances where Mr Vella is asserting an acute disc injury to the low back requiring lumbar spine surgery. We do not accept Dr Dias’ explanation for the absence of reference to low back symptoms.
Histories of onset of lumbar spine symptoms as recorded by Professor Sheridan and Dr Dias support a history of either an aggravation of symptoms (Professor Sheridan) or an onset of symptoms (Dr Dias). We consider those histories as part of the factual matrix. However, we do not consider these histories reliable noting the period of time following the motor accident when they were provided. The fallibility of human recollection and the importance of contemporaneous records are referenced in numerous cases including Coote v Kelly[19], Onassis v Vergottis[20], Gestmin SGPS S.A. v Credit Suisse (UK) Limited[21], Campbell v Campbell[22] and Watson v Foxman.[23] The latter versions contrast starkly to the version in the claim form and omission in other materials such as in the report of Dr Giblin.
[19] [2016] NSWSC 1447.
[20] [1968] 2 Li Rep 403 at 431.
[21] [2013] EWHC 3560 (Comm) at [15]-[22].
[22] [2015] NSWSC 784 at [73]-[76].
[23] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
For these reasons, we are not satisfied that Mr Vella aggravated or injured the L2/3 disc or the lumbar spine generally in the motor accident.
Right shoulder injury
The insurer does not appear to dispute injury to the neck and or right shoulder in the motor accident and its submissions suggest recovery from these injuries. We reach that conclusion from its reliance of the opinions expressed by Dr Dalton and Dr Breit.
Mr Vella did not have recorded complaints of cervical spine and right shoulder symptoms prior to the accident. He immediately complained of these symptoms following the motor accident.
There are otherwise continuous neck and right shoulder symptoms documented in the various medical practitioner notes and certificates following the motor accident.
The scan evidence immediately following the motor accident revealed a partial tear of the supraspinatus tendon. The nature of the motor accident, understood to be an impact into the driver’s door by a truck travelling at speed, is, in the Panel’s expert medical opinion, consistent with a mechanism of injury of this nature because of the likelihood of direct trauma to the right shoulder.
The initial treating shoulder specialist, Dr Dave, opined that the symptoms were consistent with the findings on the MRI scan which relevantly showed a partial tear of the supraspinatus tear.
The clinical notes and the contemporaneous histories, such as that recorded by
Dr Dave, show no suggestion of prior right shoulder symptoms.
Mr Vella’s claim that he suffered a tear of the supraspinatus tendon is supported by the opinion of three treating shoulder specialists[24]. It is otherwise supported by an absence of pre-motor accident right shoulder pain and consistent complaints following the accident.
[24] Dr Dave, Dr Ireland and Dr Herald.
The contrary opinion expressed by Dr Dalton that there was a recovery is made in the absence of any analysis as to when that recovery occurred. The opinion is inconsistent with the documented complaints of continuous right shoulder problems following the accident. In the medical expertise of the Panel, the observed complaints and restrictions are consistent with the pathology shown in the ultrasound and MRI scan of the right shoulder.
For these reasons, the Panel accepts that Mr Vella sustained a partial tear of the supraspinatus tendon in the motor accident.
Causal relationship between motor accident and treatment
Right shoulder surgery and sequalae
The insurer’s submissions initially emphasis the distinction between the causal relationship between the motor accident and the treatment on the one hand, and the separate issue of whether the treatment is “reasonable and necessary in the circumstances”. We agree that they are distinct issues.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[25]
[25] [2018] NSWSC 1710 at [29] (Phillips).
We accept that the right shoulder surgery was causatively related to the motor accident. We rely on our previous findings of the nature of the right shoulder pathology caused by the motor accident. The purpose of the surgery was to repair the tear. Decompressive surgery with repair of tendon attachments is a common intervention with gleno-humeral joint pain problems.
Three specialist orthopaedic surgeons treated Mr Vella for his right shoulder. Dr Dave initially examined Mr Vella on two occasions and opined that surgery may be required if the shoulder symptoms failed to improve. Importantly, Dr Dave noted that the symptoms were consistent with the findings shown on the MRI scan.
Dr Ireland also accepted that surgery may be required but recommended at first instance that further investigations be undertaken with respect to the cervical spine.
Dr Herald recommended and performed the shoulder surgery.
Given our previous finding on the nature of the right shoulder injury, the motor accident materially contributed to the right shoulder surgery because it was performed to repair the supraspinatus tear.
Following the surgery, the medical evidence shows that Mr Vella developed adhesive capsulitis. There are suggestions in the medical opinion of Dr Herald that the delay in receiving post-operative physiotherapy contributed to that condition. Such an explanation is medically plausible, and we accept it.
Many of the treatments undertaken by Mr Vella following the shoulder surgery are related to the poor surgical outcome. Mr Vella undoubtedly suffered and suffers from a pain syndrome and psychological sequelae as a consequence of the shoulder and neck injuries which includes the effects of the shoulder surgery.
In Hunter v Insurance Australia Ltd[26] the Court held that the Panel then erred by applying a notion of a requirement that there be a “direct” consequence when it was sufficient that “an indirect, but forseeable consequence, was sufficient to establish causation”.[27] Accordingly, the consequences of the surgical treatment that is related to the motor accident are causatively related to the motor accident. That the insurer describes these consequences as being “superseded by the adhesive capsulitis [which resulted] from the right shoulder surgery” is an incorrect application of the relevant test of causation.
[26] [2021] NSWSC 623 (Hunter).
[27] Hunter at [20].
The insurer otherwise relied on the opinion expressed by Dr Dalton that the surgery was unrelated because Mr Vella did not sustain a supraspinatus tear. The Panel, which include medical experts, for the reasons expressed earlier, disagree with that view.
For these reasons the Panel accepts that the right shoulder surgery and the effects of the surgery were caused by the motor accident.
Lumbar spine
We refer to our earlier findings that Mr Vella did not sustain a lumbar spine injury caused by the motor accident. In these circumstances, we conclude that there is no causal relationship between the motor accident and subsequent treatment, including the operative treatment, solely related to the lumbar spine.
Cervical spine
The Panel accepts that Mr Vella suffered aggravation of degenerative changes in the cervical spine, particularly in the C5/6 level resulting in nerve root compression caused by the motor accident.
We refer to and adopt the observations of his Honour in Shah set out at paragraph 107 herein which explains the whiplash mechanism causing cervical spine injury.
In reaching this conclusion, the Panel has relied on the absence of pre-accident cervical spine complaint, contemporaneous and continuous complaints since the motor accident, the description of the cervical spine complaints with referred pain and consistent medical treatment to the neck over an extensive period.
The cervical spine injury has resulted in the need for various treatment. The neck pain has also exacerbated the adverse consequences from the shoulder surgery which included the development of a chronic pain syndrome and related psychological condition. We reject the insurer’s submission, which is inconsistent with the recorded complaints, that there was a recovery of the neck injury at some point following the motor accident.
By reason of the cervical spine injury, Mr Vella received a variety of medical treatment over an extensive period since the motor accident until the medical assessment.
Reasonable and necessary in the circumstances
Mr Vella is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[28], Grove J stated:[29]
“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”
[28] [2003] NSWCA 52 (Clampett).
[29] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[30]
[30] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
The insurer referred to Dr Dalton’s opinion that the surgery was not reasonable and necessary because of the poor outcome and Mr Vella’s pain and psychological condition.
Medical science supports that the received shoulder surgery is a reasonable intervention. The surgery was undertaken to repair a supraspinatus tear.
Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[31] 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.
[31] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
A poor outcome does not mean that the treatment was not reasonable and necessary. The Panel endorses the following observation from Diab:[32]
“Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.”
[32] Diab at [89].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”. In our view, surgery can clearly be “reasonable and necessary” despite the fact that the patient suffers a less than desirable outcome. In the present case, the notion that
Mr Vella may require surgery to the shoulder was the subject of positive support in varying degrees from three treating shoulder specialists.The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because s 58 of the MAC Act refers to treatment “provided or to be provided to the claimant”, that is the specific claimant the subject of disagreement between the parties. That may mean that a particular claimant has subjective requirements that may mean that some treatment for a specific injury is reasonable and necessary whereas the same treatment for the same condition of a different claimant may not satisfy the test. It is inappropriate to provide general principles, simply, on a proper construction of the section.
In the present case the documentation shows that Mr Vella had a mixed pain pattern with probable contributions from the neck and shoulder. There are also multiple pathologies in the shoulder although Dr Dave was of the view that the shoulder pain and restriction of movement was consistent with the findings shown on the MRI scan.
Dr Dalton questioned the shoulder and suggested that surgery would not be beneficial. Those comments were, in part directed to Mr Vella’s psychological condition. However, Dr Dalton did not consider that Mr Vella reported benefits in the period following the low back surgery. Indeed, the complaints of pain following the back surgery were principally directed to neck and the right shoulder pain.
The Panel adopts the view that the shoulder surgery was a surgical and medical judgement made by a suitably qualified specialist. Given this viewpoint, the Panel concludes that the received surgery was both reasonable and necessary.
The Panel has not been afforded the benefit of proper submission on the question whether the back surgery was “reasonable and necessary”. This, as we previously noted, is distinct from the question of whether the back surgery was caused by the motor accident which has been determined adverse to Mr Vella.
The pathology and complaints support the medical proposition that this surgical procedure to the back was reasonable and necessary. The procedure was a recognised medical procedure treating this type of pathology. In the absence of proper submissions, we defer to the opinion of the treating surgeon and accept that the lumbar spine procedure was “reasonable and necessary”.
The remaining 13 questions require a response to whether “any past” treatment over a five-year period were otherwise reasonable and necessary. We have discussed earlier our interpretation of these matters. The medical evidence relied upon by the insurer, who does not bear the onus, does not address the issue of whether “any of the treatment” can be so described. Dr Dalton criticised the extent of some of the treatment.
The Panel intend to answer these vague questions as best we can in the manner in which they have been drafted, that is, if any of the treatment is considered “reasonable and necessary”. The answer to those questions are yes.
Past medical care falls within the orbit of medical judgement. Mr Vella has been treated by medically qualified professionals, who are privileged to make medical treatment judgements of this nature. He has consistently complained of a high degree of chronic pain and sought treatment from various medical practitioners.
The treatment has received has been recommended by medical practitioners, all of which accords with responsible medical practice. CT guided cortisone injections are an appropriate acceptable treatment recognised by medical practitioners. The complaints of pain by Mr Vella support the need for this treatment.
The Panel accepts that all investigations for the neck and right shoulder are reasonable and necessary.
The use of appropriate pain relief medication is an appropriate, reasonable and necessary medical treatment for someone such as Mr Vella suffering pain. Unfortunately, the use of pain medication in the present case led to other treatment such as that provided by Dr Edwards for gastric upset caused by NSAIDs. Again, that treatment was reasonable and necessary.
Mr Vella has received other forms of appropriate treatment for his chronic pain and associated psychological condition which we accept was reasonable and necessary. This has included psychological counselling, pain management, the REGAIN management program and anti-depressant medication.
Mr Vella has also received various treatments such as hydrotherapy, physiotherapy and massage at various times. Consistent with the question asked of the Panel, we accept that this treatment is reasonable and necessary give the extensive pain and disability suffered by Mr Vella.
FINDINGS
On review the Panel accepts that Mr Vella suffered issues to the cervical spine and right shoulder in the motor accident. The nature of those injuries is set out in our Reasons.
We do not accept that Mr Vella suffered any low back injury caused by the motor accident. Accordingly, the treatment solely referable to the low back including the surgical procedure at L2/3 was not caused by the motor accident.
The Panel accepts that the other treatment was caused by the accident. We also accept that all the treatment was reasonable and necessary in the circumstances.
The replacement certificates are set at the commencement of these Reasons.
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