Ayoub v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Ayoub v AAI Limited t/as GIO [2022] NSWPICMP 511
CLAIMANT:	Joseph Ayoub
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	13 December 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injuries in a motor accident on 25 September 2015 whilst test riding a motorcycle; the issues were whether a cervical spine surgery was reasonable and necessary and caused by the motor accident; the issue of injury to the cervical spine was in dispute; there was an absence of reference to cervical spine symptoms following the accident although the claimant was eventually referred for a scan of the neck; the neck symptoms in the months after the motor accident were mild and intermittent consistent with a reference to neck pain being “non-specific” by the chiropractor in December 2015; there was an absence of any reference to neck pain in any clinical notes and the medical reports during the period from 2016 to 2018; when the neck was examined on the two occasions identified during this period it was reported as normal; the neck was reported as symptomatic in 2019 and deteriorated since that time; findings made that the claimant suffered a soft tissue neck injury which recovered after three months; no material contribution between the injury and need for surgery; various factors considered when assessing whether the surgery was reasonable and necessary in the circumstances; Diab v NRMA referred to; Panel not satisfied that the proposed surgery was necessary because of the claimant’s psychological condition and the non-dermatome nature of the upper extremity symptoms, resulting in a likely poor outcome from this surgery; Held – the proposed surgery was not reasonable and necessary and not caused by the motor accident.
DETERMINATIONS MADE:	Review Panel Assessment of Treatment and Care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel confirms the certificate of Medical Assessor Home dated 31 March 2022.

REASONS

BACKGROUND

Mr Joseph Ayoub (the claimant) was involved in a motor accident on 25 September 2015 whilst riding a motorcycle. The accident occurred when Mr Ayoub was test riding a motor bike and the brakes locked causing him to fall onto the roadway.[1]
[1] Claimant’s bundle, p 1,780.
The insurer is liable to pay Mr Ayoub any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute before the Panel is whether surgery proposed by Dr Coughlan is “reasonable and necessary in the circumstances” and “relates to the injuries caused by the motor accident”.[2] These constitute medical disputes within the meaning of the Act.[3]
[2] This was confirmed by the parties in response to a direction dated 21 October 2022.
[3] See ss 57 and 58 of the MAC Act.
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[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 31 March 2022. The Medical Assessor stated:
“I do not find that there is a causal relationship between the subject accident and the subsequent progression of underlying cervical spondylosis.
In this regard:
• There is no evidence that the Claimant sustained a material severe injury to the cervical spine.
• At several subsequent independent medical examination no neck pain was recorded and the claimant was found to have normal spinal mobility in all planes, without spasm or guarding. This first changed in December 2019, when Dr Keller noted neck stiffness that was not apparent at his prior assessment in 2017.
• Further, the early MRI scans do not show a structural injury to the cervical spine.
Therefore, to the extent that the Claimant now presents, with the Treatment Dispute relating to surgery of the cervical spine, as proposed by Dr Marc Coughlan, I do not find that the requirement for surgery is causally related to the injuries sustained in the subject accident.”
Medical Assessor Home found that the proposed surgery was not causally related to the motor accident and was not “reasonable and necessary related to the injury”.

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 certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
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.[6]
[6] 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 cl 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[7] 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).
[7] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] 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 matter solely based on the written application.[9]
[9] 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.[10]
[10] 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.

STATUTORY PROVISIONS/GUIDELINES

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 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[11]. In Raina v CIC Allianz Insurance Ltd[12] 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), ss 5D 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.”
[11] See s 3B(2) of the CL Act.
[12] [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 MAC Act. The observations are still pertinent to the presently constituted Panel.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed extensive bundles of documents in accordance with the initial Direction.
After the Panel had commenced its deliberations, the claimant filed further evidence. The evidence was:
-      Letter to Appeal Panel dated 29 November 2022;
-      Report of Dr Prashanth Rao dated 12 July 2022; and
-      Report of Dr John Sheehy dated 15 November 2022.
Whilst this is a new assessment, the ongoing perception and practise of the legal profession in filing late material is preventing Medical Review Panels in the Motor Accident Division from undertaking their functions with due expedition. This practise is not isolated to this Review.
The claimant’s letter dated 29 November 2022 stated that the report of Dr Rao was not previously available. It was submitted that the opinion of Dr Sheehy was required because of the views of Dr Coughlan and Dr Rao.
We do not accept the claimant’s submission that a further opinion from Dr Sheehy was required. Dr Coughlan has expressed his opinion over a number of reports and eventually concluded that a fusion procedure was required. Dr Rao’s opinion on the type of surgery is consistent with Dr Coughlan’s final view.
Dr Rao provided a report dated 12 July 2022. The doctor relevantly stated:
“Joe had his X-ray and bone scans done. The bone scan shows an increased uptake in the C5/6 and the X-ray dynamic instability at C4/5 with flexion extension.
Given that Joe also has ossified posterior longitudinal ligament, I would not advise disc replacement at C4/5 I would recommend him to do two level fusions. It is likely that the C5/6 has failed initially after his injury and with time damage and degeneration occurred at the level above due to rising stress. Furthermore, he is unable to take pain medications due to his bowel problems, and he is being managed with Panadol which is insufficient to control the pain in his condition.”
Dr John Sheehy, neurosurgeon, provided a report dated 15 November 2022. The doctor noted the motor accident when the claimant suffered a variety of injuries including to the neck.
Dr Sheehy opined that the November 2015 MRI scan of the cervical spine showed “early facet joint changes at several scattered cervical levels without significant neural exit foraminal stenosis”. The doctor opined that the claimant had “aggravated degenerative changes at C4/5 and C5/6”, presumably a reference to the motor accident aggravating these changes. Dr Sheehy opined:
“He has failed an extensive program of conservative management and I would support the anterior cervical fusion at C4/5 and C5/6 in such circumstances with the need for surgery being directly related to the symptoms he has developed following the injury on 25 September 2015.”
The recent expert views on the type of proposed surgery only confirm Dr Coughlan’s latest opinion.
There is potential prejudice to the insurer by the admission of the evidence without having an opportunity to respond to the late material. However, for the reasons articulated, the claimant is unsuccessful and there is no need to delay the matter further. Accordingly, we have determined the matter adversely to the claimant without providing the insurer with an opportunity of filing evidence in reply.

Pre-accident records

Pre-existing clinical records do not refer to pain or any condition in the cervical spine.[13] A clinical entry in March 2015 referred to low back pain present for “some months”.[14]
[13] Claimant’s bundle, pp 33-43.
[14] Claimant’s bundle, p 35.

Initial medical treatment following the motor accident

The ambulance record was:[15]
“54 YO male motor cyclist low speed (15 km/hr) fall onto right side after front brakes locked up, Pt wearing helmet. O/E Pt sitting in passers by car, Pt well perfused, A+ O, normotensive, pearl, GCS = 15, denies any neck/back pain.”
[15] Insurer’s bundle, p 482.
The emergency department clinical note dated 25 September 2015 referred to a history of “brakes of bike lock as he was riding causing him to fall off”.[16] The main complaint was right chest pain and difficulty breathing. Abrasions were observed on the right forearm and right hip. The X-ray of the right shoulder was reported as normal.[17]
[16] Claimant’s bundle, p 1,815.
[17] Claimant’s bundle, p 1,818.
Triage notes refer to a low-speed motor bike accident, brakes locked and fallen to right side with “nil neck pain”.[18] Elsewhere the neck was described as “non-tender”.[19]
[18] Insurer’s bundle, p 480.
[19] Claimant’s bundle, p737
On 1 October 2015 the general practitioner recorded the reason for consultation as “right pneumothorax traumatic” and prescribed Panadeine Forte.[20] On 5 October 2015 the general practitioner recorded the claimant sought “stronger pain killers” and observed that the claimant was exhibiting “drug seeking behaviour”.[21] The doctor noted “muscular type pain at the upper medial to his right shoulder blade”.
[20] Claimant’s bundle, p 35.
[21] Claimant’s bundle, p 36.
A further attendance at the emergency department on 6 October 2015 noted pain on the right side of the chest and back with a diagnosis of small right sided pneumothorax.[22] Panadeine Forte was prescribed with a plan to follow up for review with the general practitioner in one weeks’ time.
[22] Claimant’s bundle, p 2,097.
A referral for physiotherapy dated 8 October 2015 noted “atypical muscular type right sided chest pain and back pain following a fall from motorcycle and small haemodynamically stable pneumothorax”.[23]
[23] Claimant’s bundle, p 1,828.
The Workcover certificates dated 8 October and 13 October 2015 noted a referral for physiotherapy for right sided chest pain and back pain following a fall from a motorcycle.[24] The description of injury was:
“Test riding a trade-in motorcycle for work purposes at work, front brakes ceased (locked) causing him to fall off, landed on right hand side, wearing helmet, no impact against handlebars, bike did not land on him; felt immediate right side chest pain and difficulty breathing, was taken by ED to ambulance.”
[24] Claimant’s bundle, pp 1,781, 1,830.
Physiotherapy commenced on 16 October 2015.[25] Pain was reported by Mr Ayoub to the right lung, right shoulder, right hip and thoracic spine (right sided).
[25] Claimant’s bundle, p 1,802.
On 20 October 2015 the general practitioner noted “pain in right shoulder and right hip over greater trochanter”[26] and referred the claimant to a physiotherapist. The doctor noted full range of motion of the right shoulder and right hip and stated:[27]
“[T]hese are all new development that were not present on any of his previous visits since the time of work-related injury”.
[26] Claimant’s bundle, p 47.
[27] Claimant’s bundle, p 48.
Clinical notes of the radiologist dated 20 October 2015 noted right shoulder pain and right hip pain following fall from motorbike.[28]
[28] Claimant’s bundle, p 1,839, p 1,841.
On 21 October 2015 the general practitioner noted injuries to the right shoulder, right hip, chest and back.[29]
[29] Claimant’s bundle, p 1,783.
On 22 October 2015 the general practitioner requested MRI scans of the “right shoulder, right hip and thoracic spine and neck”.[30]
[30] Claimant’s bundle, p 1,852.
The ultrasound of the right shoulder dated 22 October 2015 showed:[31]
“There is a 3.6 mm focal mildly increased echogenicity within the tendon of the long head of the biceps. This could represent a contusion or an early calcification.
The rotator cuff tendons appeared normal. No tear was seen.
There is no sign of shoulder joint effusion.
The acromioclavicular joint is swollen with a thickened joint capsule. This would represent a combination of joint effusion and joint capsule thickening consistent with a strain injury involving the capsule and acromioclavicular ligaments. The joint was locally symptomatic.”
[31] Claimant’s bundle, p 48.
Further referral to the physiotherapist dated 5 November 2015 noted the scan findings.[32]
[32] Claimant’s bundle, p 1,859.
Subsequent clinical notes refer to the right shoulder and right hip.[33] On 26 November 2015 the general practitioner noted that pain in the right hip and shoulder was “worse at night and when at rest than during work”.[34] The doctor noted “yellow flags” which related to catastrophising, fear-avoidance behaviour, passive attitude towards treatment and requesting lots of tests.
[33] Claimant’s bundle, pp 48-51.
[34] Claimant’s bundle, p 50.
On 3 December 2015 the general practitioner recorded “pain in the neck and lower back related to the work injury”.[35]
[35] Claimant’s bundle, p 51.
A report from the chiropractor noted presentation on 10 December 2015 with various symptoms including “paraesthesia to the right thumb, index and middle fingers” and “non-specific neck pain”.[36] The accident was described as occurring when Mr Ayoub landing “heavily on his right side”.
[36] Claimant’s bundle, p 308.
Examination findings included:
“Right median nerve irritation at the cubital fossa with possible double crush syndrome at the wrist (very restricted radio-lunate joint) and also lower cervical spine dysfunction with a myofascial component in the anterior triangle.”
On 4 January 2016 the claimant underwent guided injections into the right shoulder.[37]
[37] Claimant’s bundle, p 1,878.
The general practitioner again referred the claimant to physiotherapy for management of shoulder pain on 22 March 2016.[38]
[38] Claimant’s bundle, p 1,891.
The physiotherapy report dated 31 March 2016 noted presentation the previous week for ongoing right shoulder pain. Cervical spine testing was described as “NAD” which means no abnormality.[39]
[39] Insurer’s bundle, p 259.
The clinical notes of the general practitioner between January 2016 and the end of 2018 do not refer to neck pain.[40] On 1 May 2018 Dr Beckwith’s clinical notes for symptoms in the right arm also refer to the range of motion of the neck as “normal”.[41]
[40] Claimant’s bundle, pp 52-78; pp 1,528-1,576; Insurer’s bundle pp 820-835.
[41] Claimant’s bundle, p 1,574.

Radiology

The MRI scan dated 9 November 2015 is reported as showing early disc dessication at all levels with small posterocentral focal disc protrusions at C4/5 and C6/7. No acute injury is identified.[42]
[42] Insurer’s bundle, p 251.
The X-ray of the cervical spine dated 1 December 2019 showed moderate disc height reduction at C5/6 with associated endplate sclerosis and osteophytes.[43] A further X-ray dated 8 August 2020 showed chronic degenerative changes at C5/6.[44]
[43] Insurer’s bundle, p 842.
[44] Insurer’s bundle, p 859.
The MRI scan of the cervical spine dated 17 February 2021 showed a moderate central disc protrusion at C4/5 with spinal stenosis and mild spinal canal stenosis at C5/6 with foraminal narrowing.[45]

Treating opinions
[45] Claimant’s bundle, p 79.

Dr Benjamin Kenny

Dr Kenny, orthopaedic surgeon provided a report dated 17 February 2016.[46] The doctor noted the accident when the claimant “came down firmly on the right-hand side sustaining injuries to his right shoulder and right thigh”. The findings were expanded in a subsequent report.[47]
[46] Claimant’s bundle, p 298.
[47] Claimant’s bundle, p 300.
There is no reference to any neck injury sustained in the motor accident.

Dr Michael Hunter

Dr Hunter, orthopaedic surgeon provided a report dated 5 April 2016.[48] The doctor noted the motor accident when the claimant landed on his right side fracturing his ribs and a pneumothorax, injury to the right shoulder, right thigh and left wrist. Subsequent reports addressed the treatment of the right hip injury.[49]
[48] Claimant’s bundle, p 150.
[49] Claimant’s bundle, pp 152-168.

There is no reference to any neck injury sustained in the motor accident.

Associate Professor Walter

Dr Hunter referred the claimant to Associate Professor Walter for a further opinion who provided a report dated 12 September 2016. The history then obtained was that Mr Ayoub fell off a motorbike injuring the right shoulder, ribs and right hip.[50] On 6 January 2017 the Associate Professor noted worsening right hip pain described as “significantly disabling”.[51]
[50] Claimant’s bundle, p 130.
[51] Claimant’s bundle, p 2,267.

Dr Marc Coughlan

In a report dated 31 March 2021 Dr Coughlan noted that Mr Ayoub had marked discopathy at C5/6 with a collapsed disc and significant modic changes and a reasonably large posterocentral disc herniation at C4/5.[52] The doctor then opined that the claimant would require a two-level discectomy with a solid prothesis (fusion) or a hybrid between a disc replacement and a solid prothesis.
[52] Claimant’s bundle, p 11.
On 17 June 2021 Dr Coughlan noted injury on the motor accident to the neck and other body parts. The doctor noted recent MRI scan showed a ruptured disc at C4/5 and significant discopathy at C5/6 with thecal sac indentation at C4/5 and to a lesser degree at C5/6. Due to ongoing axial neck pain and paraesthesia the doctor recommended two level anterior body fusion at C4/5 and C5/6.[53]
[53] Claimant’s bundle, p 12.
In a report dated 29 November 2021 Dr Coughlan noted a history of the motorcycle accident causing injury to several body parts including the neck and Mr Ayoub attended hospital with “significant symptoms with axial neck pain, headaches and pain across the cranial area.”[54] Dr Coughlan opined that the disc pathology at C4/5 and C5/6 was “consistent with the mechanism of injury and subsequent symptoms”. The doctor recommended the claimant undergo a C4/5 and C5/6 ACDF (anterior compression and decompression fusion).
[54] Claimant’s bundle, p 13.
In a further report dated 9 February 2022 Dr Coughlan noted that the claimant reported immediate onset of symptoms following the accident and was previously asymptomatic.[55] The doctor opined that the claimant “suffered a cervical spine injury as a result of the MVA” and “the mechanism of injury and the subsequent symptomatology and imaging are all closely related”.
[55] Claimant’s bundle, p 81.
Dr Coughlan opined that the recent MRI scan showed significant discopathy at C5/6 and a ruptured disc at C4/5 causing thecal sac indentation particularly at C4/5 centrally and to a lesser degree at C5/6.

Qualified opinions

Dr George Kalnins

Dr George Kalnins, orthopaedic surgeon was qualified by the workers compensation insurer and provided a report dated 13 January 2016.[56] The doctor noted a history that the claimant was “riding a bike and brakes came on spontaneously and he veered and fell to the right side”. There was no record of neck pain.
[56] Insurer’s bundle, p 113.

Dr Raymond Wallace

Dr Raymond Wallace was qualified by the workers compensation insurer and provided a report dated 25 October 2016.[57] The doctor recorded a history of the motor accident when the claimant “fell onto his right side”.
[57] Insurer’s bundle, p 119.
The doctor referred to the MRI scan of the cervicothoracic spine dated 9 November 2015 which showed early disc dessication with small focal disc protrusions at C4/5 and C5/6.
Dr Wallace did not record that there was a cervical spine injury sustained in the motor accident. The ongoing complaints were of symptoms in the right hip.

Dr Graham Vickery

Dr Graham Vickery, psychologist, provided a report dated 15 December 2016.[58] The doctor noted that the overwhelming pain was in the right hip with right shoulder pain. There is no mention in the report that the claimant was suffering from neck pain. Dr Vickery diagnosed a chronic adjustment disorder with anxiety and depressed mood and somatoform chronic pain disorder.
[58] Insurer’s bundle, p 131.

Dr McClure

Dr McClure, psychiatrist provided a report dated 12 October 2017. The doctor obtained a history that the motor accident occurred when the claimant “fell heavily from the cycle onto his right-hand side.”
The doctor noted that the claimant had persistent chest pain, right shoulder pain and right hip pain following the motor accident.[59] There is no mention of the claimant suffering neck pain. Dr McClure diagnosed the claimant with a Dysthymic Disorder or Persistent Depressive Disorder.
[59] Insurer’s bundle, p 146.

Associate Professor Shatwell

Associate Professor Shatwell provided a report dated 19 October 2017.[60] There is no mention of cervical spine injury in the report. The doctor concluded that Mr Ayoub sustained soft tissue injuries to the right shoulder and right hip and a small pneumothorax with associated rib fractures on the right side.
[60] Insurer’s bundle, p 194.
Associate Professor Shatwell provided a supplementary report dated 20 February 2019 addressing various documents.[61] The report addressed the issue of right hip injury based on the pre-accident history of hip symptoms and is not directed to any issue of cervical spine injury.
[61] Claimant’s bundle, p 207.
Associate Professor Shatwell provided a further report dated 17 December 2019.[62] There was no complaint of neck pain although Mr Ayoub did complain of right wrist pain with tingling in the fingers. Cervical spine movement were described as being “within normal limits” with no symmetrical reflex activity and no definite sensory disturbance. [63]
[62] Claimant’s bundle, p 207.
[63] Insurer’s bundle, p 216.

Dr Andrew Keller

In a report dated 12 October 2017, Dr Andrew Keller, occupational physician, noted injury to the right shoulder and right hip in the motor accident with ongoing problems in those regions. The accident was described as occurring when the “bike fell on to the right side” and the claimant “hitting his right chest, right shoulder and right hip but suffering no loss of consciousness”. The doctor specifically noted that “inspection of the cervical spine was normal”.[64]
[64] Insurer’s bundle, p 172.
Dr Keller provided a further report dated 24 December 2019.[65] The doctor again noted that inspection of the cervical spine was normal with a restricted range of motion.
[65] Insurer’s bundle, p 183.
Later in his report Dr Keller noted the deterioration in physical presentation since the last examination which “may be … not on physical grounds”.[66]
[66] Insurer’s bundle, p 186.
Dr Keller provided a supplementary report dated 1 September 2021 which was based on review of further materials and did not involve a further examination. In respect of the proposed cervical fusion surgery, Dr Keller stated:[67]
“I have assessed this gentleman on 2 occasions: 12/10/2017, 12/12/2019. With regard to the claimed motorcycle accident he reported injuries to the right hip and shoulder that in my opinion would have resolved within 3 months.
Mr Ayoub did not report neck injuries or pain to me. He had had no treatment to his neck prior to my assessments.
I have no evidence that he suffered any neck injuries attributable to the claimed motorcycle accident. His investigative findings reveal age appropriate degenerative changes only.
I have no reason to attribute any proposed cervical spine surgery to the effects of the claimed motorcycle accident.”

Dr Alan Hopcroft
[67] Insurer’s bundle, p 193.

Dr Alan Hopcroft, surgeon, was qualified by the claimant and provided a report dated 18 June 2019.[68] The doctor noted a complaint of neck pain and initial referral for an MRI scan. Neck movement was described as “improved” with some paraesthesia radiating to the right hand. Examination of the cervical spine showed a good range of movement in all directions.
[68] Claimant’s bundle, p 94.

Dr Philip Truskett

Dr Philip Truskett, surgeon, provided a report dated 13 December 2019.[69] The report addresses the causes of gastrointestinal symptoms.
[69] Insurer’s bundle, p 222.

Dr Drew Dixon

Dr Drew Dixon provided a report dated 12 October 2020.[70]
[70] Claimant’s bundle, p 15.
The doctor recorded a history that Mr Ayoub suffered a neck strain in the motor accident as well as direct injury to the right shoulder, right hip and right knee. The doctor noted that Mr Ayoub ceased work in May 2016 because of ongoing pain including pain to the neck.
Dr Dixon diagnosed an aggravation of an underlying C5/6 spondylosis.

Dr John Korber

Dr John Korber, radiologist, provided a report dated 20 December 2021[71] and a supplementary report dated 9 February 2022.[72]
[71] Insurer’s bundle, p 240.
[72] Insurer’s bundle, p 245.
Dr Korber opined that the MRI scan dated 9 November 2015 demonstrated posterior central disc protrusions at C4/5 and C6/7 with no evidence of disc herniation at C5/6. Disc degeneration is seen from C4/5 to C6/7 with exit foramina clear at all relevant levels.
Cervical -ray dated 27 November 2019 showed marked narrowing of the C5/6 disc space. MRI scan dated 17 February 2021 reported a C4/5 disc protrusion and spinal canal stenosis at C5/6.
Dr Korber opined:[73]
“First imaging reported in the same year as the accident of the cervical spine mentions C4/5 and C6/7 pathology. I suspect that there may have been some over reporting as these particular disc spaces being C4/5 and C6/7 remain normal in 2020. If there had been significant disc pathology at these levels, I would have expected some deterioration by that time.
The C5/6 level coincidentally was not reported as being abnormal. The C5/6 level is currently the level, that is the issue at hand.
I would suggest that the decision as to whether surgery is necessary or not, is a clinical one and not a radiological one. From the hospital admission, from the ambulance record and from the multiple examinations performed in the immediate aftermath of the motor vehicle accident no mention is made of cervical spine symptoms. These are not mentioned until sometime later. On this basis it would be difficult to associate the current pathology with the motor vehicle accident.”
[73] Insurer’s bundle, p 243.
In his later report Dr Korber opined that the disc protrusion at C4/5 and C6/7 initially seen on the 2015 scan were degenerative. The doctor noted that these discs were “relatively well preserved” in the X-ray dated 27 November 2019 which “would suggest that these discs were not ‘acutely’ ruptured in the motor vehicle accident”. Dr Korber noted the C5/6 disc showed no evidence of disc herniation post-accident and “has developed since” that time.[74].
[74] Insurer’s bundle, p 249.

Other documents

The motor accident claim form dated 21 March 2016 and signed by the claimant referred to various injuries sustained in the motor accident including the neck.[75] The medical certificate attached to the claim form dated 1 March 2016 and signed by Dr Ortiz-Santiago did not refer to the neck as being injured in the motor accident.[76]
[75] Claimant’s bundle, p 2,505.
[76] Claimant’s bundle, p 2,511.

OTHER MEDICAL ASSESSMENTS

In an assessment of permanent impairment dated 14 March 2020, Medical Assessor Cameron concluded that the “disc protrusions at C4/5 and C6/7, soft tissue injuries” were not caused by the motor accident.[77] That opinion is simply another medical opinion in the matter and is not conclusive evidence in this dispute. Owen v Motor Accidents Authority[78]; Allianz Australia Insurance Ltd v Girgis[79]; Brown v Lewis[80] and Pham v Shui[81]. The opinion otherwise suffers from similar deficiencies seen in other reports due to a lack of analysis of relevant histories.
[77] Insurer’s bundle, p 91.
[78] [2012] NSWSC 650.
[79] [2011] NSWSC 1424
[80] [2006] NSWCA 587.
[81] [2006] NSWCA 373.

SUBMISSIONS

At the outset we observe that this is a new assessment. There are submissions directed to persuading the President’s delegate[82] that there was error in the previous assessment or in otherwise seeking a further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.

Claimant’s submissions dated 1 December 2021[83]

[82] Or the relevant predecessor.

[83] Claimant’s bundle, p 1.

The claimant noted that causation of injury to the cervical spine was disputed. It submitted that Mr Ayoub stated that he had neck pain since the accident and cervical spine pain was recorded by the general practitioner on 3 December 2015. It was suggested that this was the first consultation with Dr Ortiz-Santiago after the claimant reported that Dr Cvetkovic was not listening to his complaints.
Despite the assertion about Dr Cvetkovic, the claimant was referred for an MRI scan of the thoracic and cervical spine by that doctor on 22 October 2015 and this scan was conducted on 9 November 2015. The claimant submitted:
“Therefore, regardless of what appears on the GP notes there must have been a complaint about the neck on or before 22 October 2015.”
The claimant submitted that the neck pain has “become worse over the years following the accident” which resulted in a referral to Dr Coughlan.
Dr Coughlan has provided a series of reports. His specific opinion on the need for surgery is contained in the report dated 29 November 2021. The opinion is supported by the significant discopathy at C5/6 and the ruptured disc at C4/5. The claimant sought orders relating to an anterior cervical and decompression fusion from C4 to C6.

Claimant’s submissions dated 27 May 2022[84]

[84] Claimant’s bundle, p 3.

These submissions sought a review of the certificate.
The claimant noted that the Medical Assessor accepted a soft tissue injury but failed to apply the correct test of causation with reference to the test articulated in Owen v Motor Accidents Authority of New South Wales.[85] It was submitted that the Medical Assessor failed to consider whether the cervical spine injury was material to the progression of the cervical spine symptoms.
[85] [2012] NSWSC 650 at [7].
The claimant submitted that the Medical Assessor gave no consideration to the claimant’s evidence of continuous and progressive neck symptoms since the motor accident and failed to consider the opinions expressed by Dr Coughlan and Dr Kalinis.
The claimant submitted that the relevant question was whether the neck injury sustained in the motor accident amounted to being material in contribution to the claimant’s undoubted progressive and severe cervical spine symptoms. An explanation had to be provided in the context of claimant’s “continuing complaints of neck pain”.

Insurer’s submissions dated 14 October 2019[86]

[86] Insurer’s bundle, p 3.

Insofar as these submissions have relevance to the present dispute. the insurer submitted that there was no contemporaneous evidence that the claimant sustained a neck injury in the motor accident. It noted that the ambulance report indicated that the claimant denied neck pain and that the main complaints at hospital were to the chest with difficulty breathing.
Furthermore, Dr Gabriel, Associate Professor Shatwell, Dr Keller and Dr Wallace did not diagnose a neck injury caused by the motor accident.

Insurer’s submissions dated 27 July 2020[87]

[87] Insurer’s bundle, p 13.

These submissions did not address neck injury.

Insurer’s submissions dated 29 September 2021[88]

[88] Insurer’s bundle, p 30.

The insurer noted that a hearing in the District Court had been vacated on the basis of a claim that Mr Ayoub undergo a neck fusion. The insurer denied injury to the cervical spine in the motor accident, that the surgery related to the motor accident and that the surgery was reasonable and necessary.
The insurer submitted that the claimant was an inaccurate historian, and that any history should be verified by contemporaneous records.
The insurer submitted that the first mention of neck pain was to the general practitioner on 3 December 2015. It was not mentioned to the general practitioner again until 27 November 2019. During this period the claimant was not diagnosed with an injury to the neck.
The insurer noted various absences of neck complaint including:
-      Medical certificate dated 1 March 2016 attached to the claim form;
-      Dr Beckwith – 1 May 2018 recorded normal range of movement in the neck;
-      31 March 2016 – Coastal physiotherapy clinic – testing recorded NAD for the cervical spine;
-      Dr Hunter, orthopaedic surgeon, on 5 April 2016 noted the claimant had obtained relief in the right shoulder;
-      Dr Benjamin Kenny, orthopaedic surgeon on 10 June 2016 diagnosed long head of biceps tendinopathy without reference to the neck, and
-      MRI scan dated 9 November 2019 showed mild spondylotic changes. Clinical notes on 27 November 2019 noted neck pain and numbness in both hands.
The insurer submitted that it was not until August 2020 that the claimant had significant neck pain and this was investigated. Scan evidence then showed significant discopathy at various levels.
The insurer referenced various medico-legal doctors which did not refer to neck pain. These are set out earlier. It also referenced Dr Kalnins, orthopaedic surgeon, who examined the claimant on 13 January 2016.
The insurer noted Dr Hopcroft’s opinion dated 18 June 2019 which referred to hand numbness. The doctor did not diagnose injury to the cervical spine. The insurer cited Dr Keller and Medical Assessor Cameron’s opinion that there was no injury to the cervical spine.

Insurer’s submissions dated 13 October 2021[89]

[89] Insurer’s bundle, p 40.

These submissions largely repeated the previous submissions that there was no cervical spine injury.

Insurer’s submissions dated 3 August 2022[90]

[90] Insurer’s bundle, p 48.

These submissions were filed opposing the application to review the assessment of Medical Assessor Home.

RE-EXAMINATION

The claimant participated in a video conference on 2 December 2022. All Panel members were present. It was explained to Mr Ayoub that the Panel were only considering his claim for the payment of neck surgery and that we were not considering other aspects of his claim. Mr Ayoub stated that he was not aware of that until he was advised by the Panel.
The claimant confirmed that there was no prior history of neck pain. He wanted to “place on the record” that Dr Garvey had made errors in his recent report including that doctor’s assertion that Mr Ayoub had Crohn’s disease.
Mr Ayoub described the motor accident in circumstances similar to histories reported elsewhere although he stated that, apart from landing on his right-hand side, Mr Ayoub landed on his head. Immediately after the motor accident Mr Ayoub stated that everything had “gone black” and he was assisted by a young lady who assisted him to lay on a grass strip next to the road.
Mr Ayoub could not remember receiving treatment by the ambulance officer. He remembered intense pain at the accident scene, that he could not breathe and that he thought he was going to die. Mr Ayoub said that he could not specifically remember pain in his neck at that time describing his pain as being “everywhere”.
At hospital, Mr Ayoub said that he was given morphine and was “high as a kite”. He said that he felt okay at hospital because of the medication he was taking. He now believes that he should not have been discharged after two days. At hospital the pain was in order of severity, first his lung/chest, then his right hip, ribs and finally his right shoulder. He said that he could not remember having neck pain whilst at hospital but that may be because he was heavily medicated.
Mr Ayoub stated that the pain kicked in about two days after he was discharged from hospital. He was no longer on morphine at that time.
Mr Ayoub agreed that he attended his general practitioner in October 2015. He was referred to the absence of reference by the general practitioner to any neck pain. Mr Ayoub stated that this was incorrect as he had been referred for a CT scan of the neck as well as other scans. He described the pain as being in the back between the shoulder blades as well as the neck as well as other body parts such as the right shoulder, right hip, chest and groin.
Mr Ayoub was referred to the physiotherapy report relating to an attendance on 16 October 2015 which specified thoracic pain but not neck pain. Mr Ayoub asked what was meant by “thoracic” and he was told it was the upper back/between the shoulder blades. In response Mr Ayoub was adamant that the physiotherapist had also treated him for his neck although he stated that the neck pain was not “that bad” at that time.

Mr Ayoub stated that after the receiving the results of the CT scan of the neck, the general practitioner told him that he had “just whiplash”.
Mr Ayoub was referred to clinical notes in early December 2015 that mentioned neck pain.
Mr Ayoub stated that he changed doctors at the medical practice as the original doctor “overlooked things” and he showed “pure ignorance”. He could not remember when this occurred, but he stated that the medical practise agreed with him that he was not being properly treated. Mr Ayoub was critical of his original general practitioner because he did not refer him promptly for specialist treatment.
Mr Ayoub was asked whether he remembered seeing various doctors over the following years both for treatment and by the insurance company. Mr Ayoub was informed that in the numerous visits to doctors during 2016, 2017 and 2018 we could not identify any mention of neck pain and that there was no history that he also landed on his head in the motor accident. Mr Ayoub stated that he had seen so many doctors that he did not remember any doctor clearly. He described the insurance company doctors as “like criminals” and did not accept what they had written.
Mr Ayoub remembered seeing Associate Professor Shatwell and specifically remembered complaining about his neck to that doctor who tested him because he had restricted movement to both the left and right side of the neck.
Mr Ayoub was advised that a physiotherapy record in late March 2016 described the neck as “no abnormality”. He was asked whether he had no neck symptoms at that time, and whether the absence of neck complaint from 2016 to 2018 indicated that any neck symptoms had resolved. Mr Ayoub stated he had neck problems consistently since the motor accident although the neck pain got worse in 2019 and has got a lot worse since that time.
Mr Ayoub mentioned that he recently consulted a neurosurgeon at Bella Vista who recommended a neck fusion. Mr Ayoub did not agree with that view. He noted that his general practitioner suggested that having an operation on the public system may be quicker. Mr Ayoub stated that “he did not want to be a guinea pig in the public health system”.
Mr Ayoub stated that he wanted to have the disc replacement surgery recommended by Dr Coughlan as this would provide more flexion in his neck and the healing time was quicker. He said that he respected Dr Coughlan and wanted to follow his advice and have that doctor operate on him.
Mr Ayoub discussed his overall pain in detail and how this has affected his life and his marriage. It is unnecessary to detail these matters although we note that Mr Ayoub’s exhibited high levels of pain.
Mr Ayoub was medically examined by Medical Assessor Moloney on 7 December 2022. The examination report is as follows:
“Mr Ayoub attended the medical suites at PIC on 7 December 2022 and was unaccompanied.
Current Symptoms
Mr Ayoub states that he has severe daily headaches mainly located on the left side of his head. He has a constant neck pain which radiates down the left arm associated with a pulling sensation and a feeling of weakness. The pain in the left arm is in a global distribution and is associated with numbness and pins and needles particularly in the left hand and more so at night. He has occasional numbness in the right hand.
He also gets a sensation of jolts which he describes as ’electric shocks’ which go down the entire left side of his body including the left leg. This occurs when he first gets out of bed in the morning.
Today he was driven to the PIC rooms from Northmead. He states that the pain increased in his neck with jolting created in the car trip. There is intermittent pain in the right shoulder and hip and the right shoulder pain increases with any lifting or pushing which creates pressure in the right shoulder region. He considers that the neck pain has increased in the past 2 years.
Mr Ayoub attended the pain clinic at Westmead Hospital yesterday and was told by a psychologist that he had PTSD. However, no further treatment was offered.
Clinical findings
Mr Ayoub walked into the rooms with a normal gait and during the interview was apparently anxious. He states that he is right-handed, and the measured weight was 104 kg with a height of 180 cm with shoes.
Cervical spine
On testing range of movement, flexion/extension was 50% of expected range and side bending 30% of expected range. Rotation to the right of 50% of expected range and to the left 30% of expected range.
On palpation there was tenderness over all the cervical spine and paravertebral muscles bilaterally in the mid-cervical region. However, no guarding or spasm was noted in the cervical musculature.
On neurological examination the upper limbs, reflexes were equal bilaterally with normal power. There was a global decrease in sensation to light touch in the entire left arm which will not dermatomal. No muscle wasting was apparent with the circumference of the upper arms 32 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 29 cm bilaterally (5 cm below the olecranon process).
Mr Ayoub had symptoms of the carpal tunnel syndrome bilaterally and on the left, there was a positive Phalen’s test suggesting this diagnosis.
Shoulders
On inspection of the shoulders no muscle wasting was apparent and on passive movement flexion and abduction was 120° bilaterally. The restriction was due to pain which on the right side was pain in the right glenohumeral joint and on the left pain in the trapezius muscle and base of the left neck. Active movements are measured using a goniometer and repeated 3 times. There was slight inconsistency on repeat testing.
Flexion on the right was 100°/90°/100° and on the left 90°/100°. Extension was 50° bilaterally with adduction 40° bilaterally. Internal and external rotation were 80° bilaterally. Abduction was 100°/110° on the right and 90°/hundred degrees on the left.
In summary, there were no signs of radiculopathy in the upper limbs. This was the same conclusion made by Assessor Cameron in his certificate.”

REASONS

The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[91] and Insurance Australia Ltd v Marsh.[92]
[91] [2021] NSWCA 287 at [40], [41] and [45].
[92] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessors’ examination report and adds the following further reasons.
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[93] 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.
[93] [2021] NSWSC 548 (Norrington).
The Court stated:[94]
“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).”
[94] Norrington at [31].

Cervical spine injury

The insurer disputes that the claimant sustained a cervical spine injury in the motor accident.
There is an absence of immediate complaint of cervical spine pain following the motor accident. Both the ambulance report and the hospital notes include positive references that there were no complaints or observed problems of the cervical spine.
Mr Ayoub could not remember the treatment he received from the ambulance officer at the scene of the accident. He also accepted that he may not have had or complained of neck pain at hospital. Accordingly, the contemporaneous notes from both the ambulance officer and the hospital that there were no initial neck complaints is uncontradicted by Mr Ayoub.
There are some references to neck pain in the months following the motor accident. On our reading, we have identified references in the general practitioner’s record dated 3 December 2015, the chiropractic attendance on 10 December 2015 and in the claim form dated 21 March 2016.
The claim form completed by Mr Ayoub states that in the motor accident he “fell off (was thrown off)”[95] the bike without specifying which body part hit the ground. The claim form details injuries to a number of body parts including the neck.
[95] Insurer’s bundle, p 2,503.
The claimant relied on the fact that he was referred to (22 October 2015) and subsequently underwent an MRI scan of the cervical spine. Mr Ayoub stated to the Panel that he underwent a CT scan of the cervical spine because of neck pain.
We observe that Mr Ayoub underwent an MRI scan of the cervical spine although in this context nothing turns upon the distinction between an MRI scan and a CT scan.
The claimant clearly suffered an injury to the right shoulder injury and was also complaining of symptoms in the thoracic spine. It is reasonable medical practice and often done by medical practitioners that the cervical spine be scanned to assess whether right shoulder and/or thoracic symptoms were from the cervical spine.
The right shoulder scan established that the right shoulder was the source of the pain.
Mr Ayoub provided a version to the Panel that he fell on his head as well as falling on his right-hand side when the accident occurred. The part of the version that Mr Ayoub fell onto his head is inconsistent with the contemporaneous records of the description of the motor accident which include:
-       the ambulance note;
-       the hospital note;
-       the WorkCover certificates dated 8 and 13 October 2015, and
-       subsequent consistent versions by a number of doctors, both qualified and treating, that the accident involved a fall onto Mr Ayoub’s right hand side.
The suggestion that Mr Ayoub struck his head is otherwise inconsistent with the detail in the ambulance and hospital notes that there was no neck symptoms or tenderness.
The history provided by Mr Ayoub that he fell on his head appeared to be self-serving. It is a detail that was not recorded by any doctor in the years after the accident and otherwise inconsistent with the ambulance and hospital notes of an absence of neck injury and an absence of reference to Mr Ayoub striking his head.
We do not accept that the claimant fell on his head in the motor accident. Mr Ayoub fell to the ground striking the right side of his body including his right shoulder.
It is medically plausible that there would be a jarring impact into the neck region from a fall striking the right side of the body.
It is Mr Ayoub’s evidence that he suffered from continuous neck pain since the motor accident.
On 31 March 2016 the physiotherapist recorded that there was no abnormality in the cervical spine. Dr Beckwith recorded full range of movement in May 2018. We otherwise could not find any reference to the cervical spine over this period and the parties made no submissions of any other relevant entries.
The claimant’s history of ongoing and continuous cervical spine symptoms is grossly inconsistent with the documentary evidence.
There is an absence of complaint of symptoms of the cervical spine to a number of doctors qualified by the insurer and/or treated by the claimant. They include:
-      Dr Kalnins – 13 January 2016;
-      Dr Kenny – 17 February 2016;
-      Dr Hunter – 5 April 2016;
-      Associate Professor Walter – 12 September 2016;
-      Dr Wallace – 25 October 2016;
-      Dr Vickery – 15 December 2016;
-      Dr McClure – 12 October 2017;
-      Associate Professor Shatwell – 19 October 2017, and
-      Dr Keller – 12 October 2017.
Mr Ayoub stated that he could not remember seeing these doctors because of the number he had seen. He was specifically asked and stated that he was unable to recall seeing Dr Kenny and Dr Hunter who treated Mr Ayoub in 2016. In these circumstances asking Mr Ayoub about the histories recorded by the doctors on the absence of neck symptoms was of little utility and was not pursued by the Panel.
Whilst Mr Ayoub appeared to believe what he was saying, his inability to recall seeing particular doctors suggests his recollection is not reliable.
We note that caution should be applied before drawing too many conclusions from brief histories in clinical notes: Mason v Demasi[96] and busy doctors “sometimes misunderstand or misrecord histories of accidents”: Davis v Council of the City of Wagga Wagga.[97]
[96] [2009] NSWCA 227 at [2]-[4].
[97] [2004] NSWCA 34 at [35].
Somewhat inconsistently, the authorities also acknowledge the fallibility of human recollection and the importance of contemporaneous records referenced in numerous cases including Coote v Kelly,[98] Onassis v Vergottis,[99] Gestmin SGPS S.A. v Credit Suisse (UK) Limited,[100] Campbell v Campbell[101] and Watson v Foxman.[102]
[98] [2016] NSWSC 1447.
[99] [1968] 2 Li Rep 403 at [431].
[100] [2013] EWHC 3560 (Comm) at [15]-[22].
[101] [2015] NSWSC 784 at [73]-[76].
[102] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
However, the present case not only includes an absence of neck symptoms but two specific occasions over the three-year period from 2016 to 2018 where the neck was examined and recorded to be symptom free. In March 2016, the physiotherapist treating the claimant for the right shoulder recorded that there was NAD in the cervical spine. In June 2018 Dr Beckwith stated that there was full range of movement in the cervical spine.
We have read the numerous documents before us and considered the parties’ submissions. The insurer relied on the absence of neck complaint noting the reference in clinical notes in December 2015 until the condition deteriorated in 2019.
Mr Ayoub stated that he underwent the neck scan because he was complaining of neck symptoms. The referral dated 22 October 2015 does not include reasons why the referral for four different scans occurred at that time.
The claimant emphasised the referral for and undergoing an MRI scan in November 2015. He did not address the insurer’s submission of an absence of neck complaint in any medical note throughout 2016 to 2018.
The physiotherapist report dated 10 November 2015 referring to treatment on 16 October 2015 which precisely refers to the areas of pain to the right shoulder and back and does not reference symptoms in the cervical spine.[103] The clinical notes of the general practitioner on 20 and 21 October 2015 do not refer to neck pain. The fact that Mr Ayoub was referred for a cervical spine scan on the 22^nd of October 2015 by his general practitioner does not mean that he had symptoms in the neck as he clearly had symptoms in the thoracic spine and the right shoulder. It would be prudent for a medical practitioner if the neck was scanned as it may explain the symptoms in the adjoining parts, particularly the right shoulder. This is because it is not uncommon that right shoulder symptoms are referred pain from the neck and can be misdiagnosed.
[103] Claimant’s bundle, p 1,802.
Mr Ayoub’s comment that he had little regard for doctors who were qualified by the insurance company does not explain how all these doctors would fail to mention the neck as being symptomatic until 2019. The explanation otherwise does not explain how treating specialists, such as Dr Kenny, Dr Hunter and Associate Professor Walter do not refer to any cervical spine symptoms.
We accept there is a complete absence of neck symptoms recorded by any doctor throughout 2016 to 2018. We accept that there were some neck symptoms at some point in the latter part of 2015 which is consistent with the claimant’s statement in the claim form dated March 2016 that he injured his neck in the motor accident.
We do not accept that the claimant suffered from neck pain throughout 2016 through to the end of 2018. The absence of recorded complaint by numerous doctors is compelling in circumstances where some of the doctors were treating specialists.
The nature of the accident which did not involve a head strike is unlikely to have caused cervical spine pathology. We accept that it is medically plausible that some jarring may have occurred resulting in some minor soft tissue injury to the neck.
We agree with Dr Korber’s opinion that the 2015 MRI scan does not show C5/6 disc pathology and there is no suggestion of discal injury at that time.
In the present matter we accept that there were minor neck symptoms at some stage in the months following the motor accident. We do not accept that there were neck symptoms immediately following the accident and accept the uncontradicted accounts provided by the ambulance officers and at the hospital.
We find that the claimant’s neck symptoms in the months after the motor accident were mild and intermittent. This is consistent with the reference to neck pain being “non-specific” by the chiropractor in December 2015, the frequent absence of reference to neck pain and the particular details of the presence of pain in the physiotherapist report relating to treatment in October 2015.
We do not accept that there was discal injury to the cervical spine caused by the motor accident. The injury was a soft tissue injury to the neck which recovered after approximately three months. We base this conclusion on the nature of the motor accident, the ambulance and hospital records of an absence of cervical spine symptoms and the infrequent mention of neck pain over the following months. We accept that there were some cervical symptoms in December 2015.
We do not accept that a mild neck injury aggravated degenerative symptoms. We agree with Dr Korber’s opinion that the disc spaces appear well preserved in the X-ray dated 27 November 2019 suggesting no deterioration during this period.
We do not accept that Dr Coughlan and Dr Dixon had a fair climate to express their opinions. The specific errors detracting from a “fair climate” are first, the histories recording that there was an immediate onset of cervical spine symptoms and secondly, the assertion that there was constant neck pain from the date of the motor accident until when the claimant was examined by the various doctors. The absence of a proper history undermines the value of these opinions. Those errors greatly undercut the value of the opinion as it is not based on a fair climate.[104]
[104] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
Dr Coughlan obtained a history of neck pain immediately following the motor accident. He has not provided an opinion based on the extensive absence of cervical spine symptoms at the time of the motor accident and how the present condition is attributable to the motor accident.
The same observations apply with respect to Dr Dixon’s opinion.
Both doctors have not considered the inconsistency between the absence of complaint to numerous doctors and the notes, where they exist on two occasions in March 2016 and June 2018 of no neck symptoms.
The recent opinions expressed by Dr Rao and Dr Sheehy otherwise assume cervical spine injury based on the history provided by the claimant. There is no discussion on the critical issues of absence of complaint, an analysis of the contemporaneous materials and the how the claimant suffered cervical spine injury.
In these circumstances the further opinions provide no assistance on causation given our factual conclusion expressed that there was a recovery of symptoms by 2016 and an absence of cervical spine symptoms over at least a three-year period.

Treatment disputes

The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
(a) reasonable and necessary, and
(b) in relation to the injury.

The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[105] The MAC Act characterises the disputes as separate issues.
[105] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].

Causation of need for treatment

The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[106]
[106] [2018] NSWSC 1710 (Phillips) at [29].
We are satisfied that there was a very minor soft tissue injury to the cervical spine and refer to our earlier reasons. The cervical spine symptomatology ceased approximately three months of the motor accident. We base this conclusion on:
-      the absence of complaint to the ambulance officers and at hospital;
-      the infrequent complaint of neck pain over the first three months;
-      the nature of the motor accident where the claimant fell onto this right hand side but did not strike his head. This may have caused a minor jarring type injury to the neck through direct impact on the right shoulder, and
-      the absence of recorded complaint for over three years (2016-2018) and the two records that the neck was not symptomatic during this period.
We do not accept on the balance of probabilities that the motor accident aggravated the pre-existing disc pathology at C4/5 and C5/6. We base this conclusion on the above matters and the pathology which does not record any discal injury at C5/6 in 2015. In our view the nature of the motor accident in light of the short intermittent symptoms would not have aggravated the disc in the cervical spine at any level.
The claimant now has significant disc disease in the cervical spine. That disease is due to the natural progression of the degenerative condition when compared to the 2015 scans.
We do not accept that there is any relationship between the motor accident and the proposed surgery.

Reasonable and necessary

Mr Ayoub 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[107], Grove J stated:[108]
“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.”
[107] [2003] NSWCA 52 (Clampett).
[108] 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.[109]
[109] 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].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[110] 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.
[110] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
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”.
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.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
In his later reports Dr Coughlan recommended a fusion procedure.[111] This contrasts with an earlier opinion by Dr Coughlan suggesting a fusion or disc replacement surgery.
[111] See report dated 29 November 2021, p 13.
The recent reports from both Dr Rao and Dr Sheehy are confirmative of Dr Coughlan’s most recent opinion of the nature of the proposed surgery.
The claimant was under the impression that the proposed surgery was for disc replacement. He said he did not want to undergo a fusion as this would restrict mobility and the recovery period would be longer. However, he also stated that he trusted Dr Coughlan’s opinion.
The claimant’s written submissions requested orders for a cervical fusion[112] and not disc replacement surgery.
[112] Submissions dated 1 December 2021, claimant’s bundle, p 2.
Given the final opinion expressed by Dr Coughlan the medical dispute concerns whether a fusion at C4/5 to C5/6 is reasonable and necessary. The opinion of Dr Rao is confirmatory of Dr Coughlan’s opinion.
Having observed and listened to Mr Ayoub it is our view that he is extremely pain focused. He also holds strong adverse views about some health practitioners such as those qualified by the insurance company and aspects of the public health system. He stated that he did not want to undergo a cervical fusion in the public health system as he perceived he would be treated as a “guinea pig”.
It is clear that conservative treatment has been unsuccessful. Indeed, Mr Ayoub’s account is that the symptoms are worsening.
We accept that spinal fusion is accepted medical treatment in treating the disc pathology and associated neck symptoms. This view accords with the recent specialists’ reports.
However, Mr Ayoub presents with severe psychological symptoms which were evident to both the Panel when he was questioned and to Medical Assessor Moloney when he was medically examined. Mr Ayoub otherwise complains of upper extremity symptoms that do not accord with any dermatome.
Based on the claimant’s psychological condition which includes a pain syndrome and the non-dermatome nature of the upper extremity symptoms, the expert medical view in the Panel is that the likely outcome of this surgery will be poor.
The outcome of any proposed surgery is only complicated because Mr Ayoub was under the impression that he wanted disc replacement surgery. We agree with the opinion of Dr Rao that disc replacement surgery is inappropriate and any surgery that should be undertaken would be a fusion procedure. Mr Ayoub stated that he did not want to undergo a fusion because that form of surgery would have a delayed recovery time and limit neck movement.
Based on these matters, we do not accept that the proposed surgery is necessary. Accordingly, we are not satisfied that the applicant had established that the proposed surgery is “reasonable and necessary”.

CONCLUSION

For these reasons the Medical Assessment Certificate dated 31 March 2022 is confirmed.

[2022] NSWPICMP 511

13 December 2022