Badal v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Badal v AAI Limited t/as AAMI [2024] NSWPICMP 208
CLAIMANT:	Souzana Badal
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	5 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; determination by Medical Assessor Kenna of 22 treatment disputes (disputes about relationship of the treatment to the accident and reasonable and necessary for 11 types of treatment); none of the treatment allowed; claimant involved in accident on 30 August 2017 and alleged injuries to her neck and lower back with symptoms in her upper and lower limbs; claimant provided radiology requested by a doctor but provided no notes in relation to that doctor; the Panel advised the claimant it would proceed on the basis that doctor had not provided any accident-related treatment and no response was received; the Panel also noted there were no medico-legal records relied on by the claimant and asked her solicitors to confirm that and no response was received; review of medical records provided indicated claimant had complaints of symptoms in most of her allegedly injured body parts before the accident, there was no mention of the accident in several consultations with the claimant’s GP in the first two weeks after the accident, claimant’s reported injuries and symptoms have varied greatly since the accident; Panel diagnosed soft tissue injuries only aggravating or exacerbating previous conditions and degenerative changes but that any exacerbation or aggravation has ceased; Held – only claim for past treatment was domestic assistance which was allowed for first 3 months after the accident; all other treatment was future treatment and Panel found not reasonable and necessary in the circumstances and not reasonable and necessary in any event; certificate revoked; AAI Limited t/as AAMI vs Phillips and Diab vs NRMA Limited applied.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Kenna dated 26 August 2023. 2. Certifies that domestic assistance for up to three months after the motor accident is reasonable and necessary in the circumstances and is related to the injuries caused by the accident.

STATEMENT OF REASONS

INTRODUCTION

Souzana Badal[1] was involved in a motor accident on 30 August 2017. She was a passenger in a car driven by her husband when another car came from the right having failed to give way. A collision occurred.
[1] The claimant’s family name at the time of the accident was different. It appears from documentation on the file that after the accident she changed her family name to Badal and it is this name that the Panel has used in these reasons.
The claimant says she injured her cervical spine (with symptoms in her upper limbs), her thoracic spine and her lumbosacral spine (with symptoms in her lower limbs). Ms Badal made a claim for damages against AAMI, the third-party insurer of the vehicle that hit the family car. AAMI has admitted liability for the claim[2].
[2] The insurer’s liability notice is at page 76 of the claimant’s bundle.
Several medical disputes arose in this claim before 2021:
(a)    a dispute about the degree of the claimant’s whole person impairment (WPI);
(b)    a dispute about ambulance services provided to the claimant on 20 September 2020, and
(c)    a dispute about a diagnostic left C5 and C7 nerve block proposed by Dr Ali, neurosurgeon.
Those disputes were referred to the Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (SIRA) for assessment in proceedings numbered 10267617 (treatment) and 10389420 (WPI). On 1 March 2021 when MAS was abolished, and the Personal Injury Commission (the Commission) was established, the resolution of those two matters fell to the Commission to determine.
On 5 July 2021, Medical Assessor Kenna determined Ms Badal did not have a WPI of greater than 10% but that the disputed treatment was reasonable and necessary in the circumstances and related to the injuries caused by the accident. The Review Panel is advised that no review has been sought by either party in relation to those assessments.
On 28 June 2022, a further 11 treatment disputes were referred to the Commission for assessment in proceedings numbered 10521168/22, and on 26 August 2023, Medical Assessor Kenna determined none of that treatment was related to the injuries caused by the accident or reasonable and necessary in the circumstances.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decisions in relation to those 11 medical assessment matters.
On 30 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed. The President’s delegate then convened a Panel to conduct the Review.
A differently constituted Review Panel was convened on 13 February 2024.

LEGISLATIVE FRAMEWORK

Ms Badal’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident[3].
[3] See s 122, Part 5.2 concerning economic or pecuniary losses, Part 5.3 concerning non-economic lor non-pecuniary losses and section 141B in respect of damages for gratuitous care.
The amount of damages awarded to an injured person are, in the absence of settlement, assessed by a Member of the Commission in accordance with common law principles. Chapter 5 of the MAC Act limits and regulates matters concerning the quantum of damages. Chapter 5 does not explicitly regulate the quantum of damages in respect of past or future treatment expenses other than to specify a discount rate for future damages and the reduction for payments made by the insurer pursuant to the duty imposed under Part 4.3 or pursuant to the early notification scheme before a claim is made pursuant to Part 3.2.

Treatment

Chapter 3 of the Act covers matters relating to the injuries sustained by a person in a motor accident and the medical assessment of medical disputes concerning those injuries. Chapter 4 contains provisions relevant to the making of claims and how claims are to be handled by insurers and assessed.
Section 83 of the MAC Act (which lies in Part 4.3, within Chapter 4) imposes upon insurers a duty to provide treatment, the need for which was caused by the injuries sustained in the accident. That duty requires the insurer to only pay for treatment that is verified and is reasonable and necessary.

Dispute resolution

Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:
“(a)    whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b)     whether any such treatment relates to the injury caused by the motor accident,
(c)      (Repealed)
(d)     whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e)     (Repealed)”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by this Review Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

At section [2] of his decision, Medical Assessor Kenna lists the 22 individual treatment disputes referred for assessment. There were 11 different disputed treatment types with two disputes each (relationship of the treatment to the accident-caused injuries and whether the treatment was reasonable and necessary in the circumstances):
(a)    foraminotomy surgery of the left C5/6 proposed by Dr Akil;
(b)    12 general practitioner (GP) consultations per year;
(c)    two orthopaedic surgeon consultations per year;
(d)    physiotherapy, hydrotherapy, remedial massage every two weeks in the future;
(e)    radiological investigations one every three years;
(f)    pain management and rehabilitation, and
(g)    domestic assistance from the date of the assessment and continuing from
0-17.5 hours per week.
Medical Assessor Kenna noted his previous assessment in June 2021 in Melbourne. He takes the following history from the claimant:
(a)    migration from Syria and a move from Sydney to Victoria;
(b)    she is separated from her husband;
(c)    she had a pre-accident history of carpal tunnel syndrome, lower back pain, knee pain and stress;
(d)    at the time of the accident, she was a front seat passenger wearing a seatbelt in her husband’s car. There was an impact from the right;
(e)    ambulance did not attend the scene and the accident was reported to police three to four weeks’ later;
(f)    six months before the accident the claimant had an MRI of both her cervical and thoracic spine confirming degenerative changes including foraminal stenosis at C5/6 on the left;
(g)    one month before the accident the claimant had X-rays of her left hip and left knee, and
(h)    after the accident she had investigations of the cervical and lumbar spines and she complained of “total body pain from neck to back involving both upper and lower extremities.”
Medical Assessor Kenna reviewed his earlier assessment and noted his diagnosis at that time of centralised low back pain with no referral of pain into either lower limb and centralised neck pain involving the neck, thoracic and lumbar spine.
He noted that after moving to Melbourne, Ms Badal’s new GP reconfirmed the findings of foraminal stenosis, marked degenerate change and potential nerve root impingement and foraminal stenosis at C5/6 and C6/7 and the claimant was referred to a neurosurgeon. He says:
“Taking into account the element with regards to causation, I was of the view at that point in time that the motor vehicle accident wasn’t the sole cause of her current clinical presentation and whilst it could well have accelerated, aggravated or exacerbated her pre-existent condition, noting there was significant pre-existent degenerative change which was impacting the outcome, I considered her injuries were consistent with the stated cause and that pre-existent degenerative changes, particularly of the cervical spine, had significantly influenced the course of the current events, but that aggravation and acceleration arising from the motor vehicle accident had also influenced the course of what was a pre-existent condition.”
At the August 2023 examination, Medical Assessor Kenna noted the claimant was then 54 years of age and had been involved in no further accidents. Ms Badal complained of localised neck pain referred equally into both limbs, centralised back pain but no thoracic pain. There was a complaint of radiating pain in the lower legs with the left more than the right.
On examination of the neck there was:
(a)    no muscle guarding or spasm;
(b)    a full range of motion with no asymmetry;
(c)    no neurological deficits in the upper limbs;
(d)    the symptoms complained of in the arms did not follow a specific nerve root distribution, and
(e)    on testing reflexes were normal, sensation was normal, there was no muscle wasting and muscle power was normal. There were no cervical nerve root tension signs.
Movements in the thoracic spine were 100% normal.
In the lumbar spine, Medical Assessor Kenna records there was:
(a)    no muscle guarding or spasm;
(b)    a full range of motion with no asymmetry;
(c)    no neurological deficits in the lower limbs, and
(d)    any symptoms in the lower limbs did not follow the distribution of any specific nerve root.
Medical Assessor Kenna noted some difficulty in assessing the upper extremity due to “poor compliance”. The hips showed a full range of motion as did the knee.
Medical Assessor Kenna said at [22]:
“As noted, I saw her previously two years earlier and her overall clinical presentation now remains substantially unchanged, with a considerable degree of functional overlay commented on by a number of assessors or examiners….
As noted, she has an extensive pre and post-accident medical history and in view of the time that has elapsed, I consider any initial aggravation was of temporary effect and her current clinical presentation now is due to the underlying pre-existent pathology which was confirmed radiologically prior to the motor vehicle accident for which she was already symptomatic, i.e. motor vehicle accident was only of temporary effect from the point of view of aggravation. That aggravation has since ceased over the last
4-5 years and her current clinical presentation now some 6 years post incident does not have any motor vehicle accident related component.”
On that basis he found none of the treatment in dispute causally related to the injuries sustained in the accident and that none of the treatment was reasonable and necessary in the circumstances.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant’s submissions at [2] argue that Medical Assessor Kenna did not disclose his reasons for his finding that the claimant sustained an aggravation injury in the car accident and that the aggravation has now ceased.
The claimant notes at [3] that in June 2021 Medical Assessor Kenna had found there was a cervicogenic factor which he relied on when allowing the injections recommended by Dr Akil. The claimant says it is inconsistent that the aggravation of the claimant’s pre-existing injuries still in play in June 2021 could have now ceased.

Insurer’s submissions

The insurer says the Medical Assessor provided “extensive reasons” at pages 5-11 and
18-19 and referred to the radiological scans, his previous findings and the claimant’s pre-accident medical history.
The insurer says Medical Assessor Kenna has continued to assert the claimant did sustain an injury to her cervical spine which he says was an aggravation injury with “temporary effect.” The insurer says the Assessor’s 2021 decision was based on a more than minimal contribution from the accident but that in the light of the time that has elapsed, there is no longer evidence of aggravation or any contribution from the accident.

Procedural matters

The originally constituted Panel met on 31 January 2024 and requested bundles of documents from the claimant (the claimant by 15 February and the insurer by 29 February 2024). The parties were advised of the medical re-examination to be held on 14 March 2024.

REVIEW OF THE EVIDENCE

The claimant’s bundle comprising 398 pages was received on 5 February 2024 and the insurer’s bundle containing 821 pages was received on 27 February 2024.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance[5] Justice Basten said:
“… A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical ... The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[5] [2022] NSWSC 1079 at [63].
The Panel has been provided with over 1,200 pages of documents. The Panel does not intend to refer to each and every one of those pages but only to the material the Panel “considers significant” to the matters in issue in this case. The Panel notes that there are a number of documents such as the claimant’s schedule of damages which were unnecessary and there is much duplication of documentation in the bundles of each party.

Claim form and claim documents

The claim form was signed as true and correct by the claimant and dated 6 November 2017.[6] The claimant alleges injuries to her neck, both arms and hands, leg and hip (left side), mid back lower back and says she has developed a psychological injury. She identifies her doctors as Dr Guirguis and Dr Sanki of Fairfield. For reasons that will be discussed later, the Panel notes that a Dr Toma is not mentioned.
[6] Pages 1-10 of the claim form are found from 62 of the claimant’s bundle. The final page was provided separately by the insurer on 26 March 2024.
Ms Badal denied any previous injuries, illnesses or conditions to the same part of her body.
Dr Guirguis completed the medical certificate on 30 August 2017 and says he has been the claimant’s treating doctor for three years. He diagnosed post-traumatic stress and mechanical derangement of the cervical and lumbar spine.

Treatment records

Pre-accident records

The claimant appears to have first attended Dr S Guirguis on 14 July 2014.[7] She attended Dr E Guirguis on 5 August 2014 reporting pain in the hands at the wrist with numbness and difficulty holding objects. The claimant was referred to Dr Youkhanis, general surgeon. On
[7] The records of the Guirguis Family Medical Practice are found at page 91 of the claimant’s bundle. The two practitioners of that practice are Dr Emil Guirguis and Dr Sanaa Guirguis they will be referred to as Dr E and Dr S Guirguis respectively.
2, 4 and 8 September 2014 she attended Dr S Guirguis for stress and marital problems. On 10 September the claimant attended with “severe stress” after a fall.
On 27 August 2014 the claimant undertook a mental health assessment at Liverpool Hospital[8]. She had broken down during a session with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) expressing suicidal thoughts due to what was currently happening in her country and her own experiences. Ms Badal was given medication and discharged the same day.
[8] Page 132 of the claimant’s bundle.
On 21 October 2014 the claimant attended Dr S Guirguis for lower back pain with stiffness and numbness involving the lower limb with spasm and straight leg raising issue. There was tenderness over L5/S1 and the sacroiliac joint but no neurological deficits. Mobic was prescribed.
Wrist pain was the subject of complaints to Dr S Guirguis again on 7 November 2014 and November 2015 when it was described as severe with weakness (“unable to hold objects”) and numbness.
Stress (sometimes mild and at other times said to be severe) associated with family problems and concern over her pregnancy were the subject of a number of complaints in late 2014, 2015 and early 2016.
The claimant was referred to Dr Teychenne on 10 November 2016 by Dr S Guirguis.[9] The referral indicates the claimant was “worried about severe both hand pains + weakness + numbness.” He noted a past history of anxiety, depression and post-traumatic stress disorder.
[9] Page 63 of the insurer’s bundle.

The first report from Dr Teychenne to Dr S Guirguis is dated 21 November 2016.[10] Doctor reports an eight year history of numbness in the whole of the left and right hand. The claimant said she dropped things and that it was painful. She did not complain of neck pain or lower back pain. He considered the studies were consistent with bilateral carpal tunnel syndrome.
[10] Page 739 of the insurer’s bundle.
The next report is dated 2 December 2016[11] and refers to constant numbness over seven years which wakes her at night. She reported pain over the neck. Nerve conduction studies confirmed a bilateral carpal tunnel syndrome.
[11] Page 738 of the insurer’s bundle.
A third report is dated 9 December 2016.[12] On examination there was numbness over the tips of all fingers. There was pain over the lower paracervical region on neck movement (Ms Badal had normal neck movement). There was normal muscle power but a grade 4/5 weakness in the left and right abductor pollicis brevis (APB) muscle which he considered consistent with Carpal Tunnel Syndrome (CTS).
[12] Page 737 of the insurer’s bundle.
While Dr Teychenne was of the view there may have been mild ulnar nerve compression, he requested an MRI scan of the cervical spine due to the neck pain. The Panel notes we have no further records from Dr Teychenne after that MRI was done. Handwritten notes on Dr Teychenne’s 9 December 2016 report indicates two phone calls were made in April 2017 but it is not clear to whom the calls were made (the claimant or her doctor).
On 14 December 2016 the claimant attended Dr S Guirguis complaining of neck pain radiating to the supra-clavicular region and intra scapular areas and to the outer aspect of the arm, hand and fingers. Pain was increased when elevating the arm at or above should height. There was no neurological deficit, but Mobic was prescribed.
On 10 January 2017 the claimant attended Dr S Guirguis again complaining of radiating neck pain and on 3 February 2017 she was “worried about her MRI” and the results were discussed. There were other complaints of stress (mild and severe) in the first half of 2017.
On 10 July 2017 the claimant saw Dr S Guirguis with knee pain aggravated by standing and walking, using the stairs squatting twisting and handling weights. There was swelling on examination and Mobic was prescribed.
25 July 2017 the claimant saw Dr S Guirguis for left hip pain which was increasing in severity towards the end of the day and at night. The claimant was limping. Flexion and extension were reduced.
The claimant was seen by Dr S Guirguis on 26 July 2017 worried about her (left hip) X-ray and on examination she had decreased movement due to pain. She was prescribed Mobic, advised to take Panadol and have massage and physiotherapy, do exercises and swimming.
On 31 July 2017 the claimant was complaining to Dr S Guirguis of severe stress and worried about severe persistent left hip pain and movements were restricted due to pain. An ultrasound guided steroid injection was suggested.
On 1 August 2017 the claimant attended Dr S Guirguis complaining of headache not associated with neck pain. On 3 August 2017 the claimant attended Dr S Guirguis with dizziness and a sudden sensation of a circular motion light headedness and loss of balance.
On 22 August 2017 Ms Badal saw Dr S Guirguis for general joint pain all over the body worse at night and with mild activity. The claimant was not sleeping due to this pain and had tingling, numbness and could not lift any weight.

Post-accident records

The claimant saw Dr E Guirguis on 1 September 2017[13] with a very short note that the examination findings were “better on TTT” and the plans for the “same TTT”. The Panel considers this is likely to be an abbreviation for treatment. The Panel notes there is no mention of the car accident in this record and no attendances between the last entry (22 August 2017) and this entry.
[13] Page 695 of the insurer’s bundle.
On 4 September 2017 the claimant was referred by Dr S Guirguis to Dr Sanki, general surgeon[14] for review with a history of anxiety and depression, post-traumatic stress disorder, bilateral carpal tunnel syndrome and irritable bowel syndrome. There is no mention of the car accident in this referral.
[14] The records from Fairfield District Medical Centre where Dr Sanki practices are found at page 84 of the claimant’s bundle.
The related note[15] of the attendance on Dr E Guirguis refers to headache “not of sudden onset, generalised” and symptoms of anxiety and stress. The Panel notes there is no mention of the car accident in this entry.
[15] Page 692 of the insurer’s bundle.
On 14 September 2017 the clamant saw Dr S Guirguis worried about her periods and with mild stress. The Panel notes there is no mention of the car accident in this entry.
On 22 September 2017 the claimant saw Dr Sanki for the first time.[16] He does have a history of the car accident with “much pain neck thoracic spine lumbar spine since then.” He also has a history of the claimant being “unable to walk” and that her left lower limb is weak and she has numbness in both hands. She had a weak left ankle reflex and exaggerated left and right knee jerk. He referred her for imaging studies of the neck, lower back and left knee as well as an ultrasound of both median nerves.
[16] Page 86 claimant’s bundle.
On 3 October the claimant saw Dr Sanki again with the results of the imaging and he arranged for physiotherapy (Mr Khairallah) and Tramal and Elevit for depression.
On 5 October 2017[17] the claimant next attended Dr E Guirguis complaining of neck and lower back pain since the accident. There was spasm in the paraspinal muscles, no obvious swelling or bruise localised tenderness.
[17] This entry is found at page 695 of the insurer’s bundle but is not in the GP records from the claimant’s bundle.
The claimant saw Dr E Guirguis on 6 October 2017[18] for neck pain radiating to the supra-clavicular and intra scapular areas extending to the outer aspect of the arm, hand and fingers. The Panel notes this entry is in almost identical terms to the entry on 14 December 2016.
[18] This entry is found at page 125 of the claimant’s bundle but is not in the GP records from the insurer’s bundle.
On 12 October 2017 the claimant attended Dr Sanki again and he has a reference only to neck pain and “for physio”. She appears to have attended on a Mr Kandathiparampi for physiotherapy at the practice on that day, but she expressed a preference to see a male physiotherapist and “walked away.”
On 7 November 2017 Dr Sanki notes injury to the cervical spine only and he completed a mental health plan because her GP “refused to give her mental health care plan.” Dr Yaser at the practice gave her counselling for post-traumatic stress disorder and insomnia, ongoing worries and flashbacks limiting her driving capacity.
On 10 November 2017 the claimant saw Dr Sanki again. The note is brief, she had “lost her forms” and a referral for a CT scan of the cervical spine was provided.
On 12 December 2017 Dr Sanki wrote to the insurer saying that the claimant was complaining of a painful left lower limb which he considered to be left lumbar radiculopathy. He noted a CT scan suggested no significant abnormality and requested approval for an MRI of the lumbar spine.
On 11 May 2018, Dr Sanki wrote to the insurer[19] advising the claimant had been seen for her “aggravated painful neck and lumbar spine.” He requested approval for 12 sessions of physiotherapy.
[19] Page 223 of the claimant’s bundle.

Other treatment records

Hospital notes from Fairfield suggest the claimant attended with complaints of abdominal pain in April and May 2017 and again in February 2018. It appears she required surgical procedures on two occasions.
The claimant commenced seeing Dr Hanna on 9 June 2020 at the Sunbury Square Medical Centre in Victoria. He has a history of the accident but with an impact on her side of the car (the left side). He notes neck and back pain, pain in the left leg and a tear of the left shoulder.
On 13 June 2020 Ms Badal attended with pain in both shoulders and an ultrasound showing bursitis in the rotator cuff on both sides. Dr Hanna has a history on 16 June 2020 of previous anxiety before the accident made worse and serious impingement of the left shoulder and neck pain with pins and needles.
On 23 June 2020 the claimant’s neck had been scanned and Dr Hanna records there was no sensory loss, no motor weakness but numbness in both arms. Ms Badal was prescribed Lyrica and on 27 June 2020 she reported feeling better.
On 15 July 2020 the claimant was prescribed Panadeine Forte at night. Symptoms continued in August and the claimant was advised to see a dietician and reduce her weight.
There are references to no loss of sensation, some weakness in the left shoulder muscles but no wasted muscles on 28 August 2020. The claimant complained of difficulty with her housekeeping duties.
While there are some complaints of hip pain, the majority of complaints concern neck pain, symptoms in the shoulders and arm but limited thoracic or back pain on 31 August 2020 and 4 September. An X-ray of her lower back on 8 September 2020 was said to show osteoarthritic changes in her back.
On 18 September 2020 the claimant complained of dizziness, the room was spinning, and Ms Badal had back pain. This was repeated on 20 September 2020. The claimant said she had vomited twice in the last two days and has been drinking fluids.
On 21 September 2020 the claimant had been to hospital for an injection of Stemetil having been diagnosed with vertigo.
There is a constant theme of depression and anxiety, rapid heart-beats as well as neck, shoulder and back complaints.
Dr Hanna’s records continue on 1 March 2021 with complaints of back and neck pain and a lot of stress. On 5 March 2021 the claimant reported neck and nerve pain and numbness in both hands however on examination there was no loss of sensation and no motor weakness. On 4 June 2021 the claimant had back and shoulder pain with referred pain down the arms. On 2 July 2021 the claimant was depressed, anxious and had left breast pain with soreness.
A further attendance on 1 October 2021 occurred due to neck pain with clicking, right ankle pain and tenosynovitis on ultrasound. The claimant was depressed and stressed.
Dr Akil, neurosurgeon wrote to Dr Hanna at Sunbury on 6 January 2021.[20] He had a history of the car accident and pain afterwards radiating to her occiput, left shoulder and left arm to the hands with tingling and pins and needles. He confirmed reduced sensation in the C6 and 7 dermatomes, but he could not measure motor function. Her reflexes were present and normal. He advised she was heading towards surgery but suggested injections first. It does not appear Dr Akil had any history of pre-accident issues.
[20] Page 58 of the insurer’s bundle
The nerve blocks were done on 3 February 2022[21] and the claimant was to be reviewed in two weeks. On 28 February 2022[22] Dr Akil noted the claimant had persistent pain in her left arm and pain in the left thigh and proposed a laminoforaminotomy targeting the C5/6 level to decompress the C6 nerve root and a cortisone injection in the bursa of the left thigh.
[21] Page 62 of the insurer’s bundle.
[22] Page 788 of the insurer’s bundle.

Radiology

On 27 January 2017 Ms Badal had an MRI of her cervical and thoracic spine[23] at the request of Dr Teychenne. The clinical notes (the reasons for the imaging) state:
“Bilateral carpal tunnel syndrome. However also noted neck pain. No clinical evidence of incomplete cord syndrome. Assess for cervical stenosis.”
[23] Page 157 of the claimant’s bundle.
In the cervical region there was no central canal stenosis or myelopathy reported at any level. It was reported there was degenerative narrowing of the C5/6 disc with a disc ridge bulge and some facet joint degenerative change and bilateral foraminal narrowing especially on the left.
In the thoracic region at T7/8 there was a shallow right paracentral disc protrusion, a prominent right disc protrusion at T9/10 and another shallow protrusion at T10/11.
Ms Badal had an X-ray of her left hip and knee on 25 July 2017[24] which showed mild degenerative changes in the hip with mild hip dysplasia more marked on the left. No bony abnormality was seen but there was degenerative change in the left knee identified.
[24] Page 151 of the claimant’s bundle.
At the request of Dr Toma (at an address in Fairfield), the claimant had an X-ray of her lumbar spine and left hip on 11 September 2017.[25] This was said to be due to back pain and left hip pain with restricted mobility. The conclusion was “minor degenerative change in the lumbar spine” and no evidence of degenerative change in the hips but reduced acetabular coverage suggesting mild hip dysplasia.
[25] Page 226 of the claimant’s bundle. Dr Toma is not in the Guirguis practice or Dr Sanki’s practice, and it does not appear that the Panel has copies of his records.
On 13 September the claimant had another CT of her left hip and a CT of the left knee also at the request of Dr Toma due to “severe pain in left hip with dysplasia of left hip.” The comments were, “mild hip dysplasia with no evidence of degenerative change or underlying bony abnormality. This is longstanding and no current cause for the pain can be identified”. There was mild degenerative change in the sacroiliac joints. The left knee CT scan showed no abnormality.
A CT scan of the cervical spine was done on 28 September 2017[26] at the request of Dr Sanki with a clinical history of “bilateral radiculopathy.” The conclusion was C5/6 disc degeneration some left exit narrowing causing some impingement of the left C6 nerve root. The lumbar spine CT scan on the same date showed no significant disc space narrowing, disc bulges or spinal canal stenosis.
[26] Page 658 of the insurer’s bundle and pages 88 and 159 of the claimant’s bundle.
On 29 September 2017 the claimant had ultrasound of both wrists again at the request of Dr Sanki. This showed left possible carpal tunnel. The right-side nerve was divided and could not be accurately measured. The CT of the left knee also done on 29 September 2017 showed early medical knee joint osteoarthritis and no effusion or loose body.
Ms Badal underwent a CT scan of her cervical spine at the request of Dr Sanki on 14 November 2017.[27] This showed a loss of disc height at C5/6 with small disc bulge producing narrowing of the neural foramina and encroachment on the left more than right C6 nerve roots.
[27] Page 221 of the claimant’s bundle.
A bone scan was performed on 14 March 2018 at the request of Dr Sanki.[28] This showed an increased uptake at the posterior aspect of left medical femoral condyle and right lateral femoral condyle which may reflect areas of subcortical cyst formation. An MRI was recommended.
[28] Page 220 of the claimant’s bundle.
On 15 March 2018 the claimant had an MRI of the left knee at the request of Dr Sanki.[29] There were no fractures, no tears and all ligaments were intact. There was slight joint effusion and mild degenerative changes noted.
[29] Page 219 of the claimant’s bundle.
Dr Hanna requested ultrasounds of both shoulders because of “severe bilateral shoulder pain restricted range of movement is 4 years since road accident.” The report of this imaging[30] showed in the right shoulder no rotator cuff tear or tendinopathy but some bursitis. In the left side there were similar findings and an identical conclusion.
[30] Page 378 of the claimant’s bundle.
A CT scan of the cervical spine dated 17 June 2020[31] due to “radiculopathy left arm” found “spinal and foraminal stenosis at C5-6 and spinal stenosis at C6-7.
[31] Page 380 of the claimant’s bundle.
On 21 July 2020 an MRI of the cervical spine[32] was done at the request of Dr Hanna. This found a “broad disc osteophyte complex with moderate to high grade left and moderate right foraminal narrowing ta C5/6 impinging upon both C6 nerve roots”.
[32] Page 397 of the claimant’s bundle.
On 5 August 2020 the claimant had an ultrasound of her left hip at the request of Dr Hanna to “check bursitis and osteoarthritis.”[33] The findings included mild sclerosis in both sacroiliac joints and subchondral sclerosis in the left acetabulum. Joint spaces and articular surfaces were well preserved and there were no bony fractures, lesions or changes seen.
[33] Page 398 of the claimant’s bundle.
Dr Hanna requested an X-ray of the claimant’s spine due to “chronic back pain with multiple areas of tenderness”. This was done on 4 September 2020[34] and showed the retrolisthesis of C6 on C5 with osteophytic growth at C5 and some foraminal narrowing at C5/6. In the thoracic spine there was no significant loss of vertebral body or disc height. And in the lumbar spine there was facet joint arthropathy from L4 to S1.
[34] Page 386 of the claimant’s bundle.

Medico-legal reports

Dr Doig, general orthopaedic and trauma surgeon provided a report dated 24 February 2022 to the insurer.[35]
[35] Page 789 of the insurer’s bundle.
He has a history of previous musculo-skeletal problems in respect of the foot (2014) lower back (2014), neck (2015), bilateral carpal tunnel (2016) knee (July 2017).
The claimant complained of ongoing neck, back, shoulder and left buttock pain and intermittent neurological disturbance in the right hand. He also noted “significant psychiatric problems”.
She gave a history of an impact from the driver’s side and that emergency services attended but she did not seek treatment.
The claimant thought she had gone to her GP five days after the accident.
The claimant’s current complaints were of generalised neck and shoulder discomfort.
Following the examination, Dr Doig diagnosed a chronic pain condition with secondary psychological issues and functional overlay. He was not of the view that the claimant “suffered any new musculo-skeletal injuries” in the accident.
On 18 March 2022, in a supplementary report, Dr Doig specifically addressed the surgery and cortisone injection proposed by Dr Akil. He said in the light of the chronic pain syndrome, surgery was unlikely to be successful. He said any need for surgery in the neck is due to the pre-existing problems in any event.
Dr Lotz, psychiatrist undertook an assessment of the claimant on 13 November 2020 at the request of the insurer and considered the claimant had developed an adjustment disorder after the accident. He accepted the claimant’s history and did not have any records suggesting a pre-accident psychiatric condition. He assessed WPI at 8%.
In a supplementary report dated 14 December 2020 he updated his WPI assessment to 5% having been taken to the records concerning the previous history of trauma. He maintained his diagnosis of an adjustment disorder with mixed anxiety and depression due to the car accident but altered his assessment noting that she had pre-existing anxiety and depression and probably post-traumatic stress disorder due to her experience of war in her home country.

Other assessments

Medical Assessor Samuels in his determination of a psychiatric treatment dispute dated 2 September 2021 said:
“In summary, the supplied documents indicate that there was a temporary exacerbation of pre-existing medical difficulties following the subject accident. Some months after the subject accident, the pre-existing psychological condition was the focus of treatment.”
He did not allow any of the claimed treatment.
In a separate decision of the same date, he found the exacerbation of a pre-existing persistent depressive disorder gave rise to no permanent impairment.
At [13] and [14] of his decisions he noted the claimant was wearing a neck brace and that she was using a stick and in receipt of National Disability Insurance Scheme (NDIS) benefits.

RE-EXAMINATION FINDINGS

Ms Badal attended the re-examination on 14 March 2024 half an hour late. The Commission had arranged an Arabic interpreter who was present throughout the examination.
The re-examination was conducted by Medical Assessor Gorman at the Commission’s medical suites. Medical Assessor Lahz participated by video link.

The Panel observed the claimant was not wearing a neck brace as she had in previous examinations and she did not bring with her any of her imaging studies.

History

Ms Badal now lives in Victoria and had flown to Sydney for the medical examination. She remains separated from her husband and lives with five children aged (respectively) 15, 14, 12, 11 and 9. Ms Badal said she relocated from NSW to Victoria due to several of her children suffering asthma.
Ms Badal told the Medical Assessors that she receives a Disability Support Pension. Since (approximately) 2022, she has also been an NDIS participant receiving carer assistance with showering/dressing, cleaning, and cooking. She said that the NDIS application had been accepted on the basis of pain-related disabilities from the motor accident.
Ms Badal confirmed her involvement in the motor accident on 30 August 2017 in which her husband was the driver. She was in the front passenger seat when a collision occurred, causing the car to spin. On specific enquiry, she said there was no impact to any of her body with the interior of the car. She remembered that her husband assisted her out of the vehicle.
At the time, she felt “shocked” although she did not attend hospital. She said that there was no immediate pain, although by three days later, she had developed pain all over her body, making it impossible for her to either “stand or walk” well. She specifically referred to pain affecting the neck, lower back and shoulders as well as numbness affecting the upper limbs and hands.
On being asked about presence of symptoms in the neck, back and body generally before the motor accident, Ms Badal responded that she had been “very fit before the accident, like a horse” and capable of completing household chores. The medical assessors drew to her attention that GP records before the motor accident (1o January 2017) refer to neck symptoms and MRI investigations. The claimant responded saying that any neck symptoms she had before the motor accident consisted of “normal, mild pain” not resembling the severe incapacitating symptoms she has now in the neck which she ascribes to the motor accident.
The medical assessors also drew to Ms Badal’s attention that there had been investigations of her left hip and knee during July 2017, only a few weeks before the motor accident although the claimant did not specifically recall this.
Essentially, Ms Badal explained that before the motor accident, there had been trivial symptoms at most and she had been fully independent in daily activities.
Ms Badal said she attended on her usual GP (Dr Guirguis) a few days after the accident. The medical assessors put to Ms Badal that there were several consultations with Dr Guirguis (her GP) after the motor accident (1 September 2017, 4 September 2017, and 14 September 2017) in which there is no mention of the motor accident. The Panel informed her that the first reference to the motor accident in medical records is on 22 September 2017 when Ms Badal consulted Dr Sanki for the first time.
Mrs Badal responded: “Well, I complained of pain … I don’t know why he (Dr Guirguis) did not write it down”.

Current symptoms and treatment

Ms Badal says she is still receiving physiotherapy twice weekly (through NDIS) for ongoing, very widespread pain.
She has also received hydrotherapy previously although she reported that there had been an onset of dizziness during one such session, compelling her to attend hospital.
She has also received a cortisone injection to the neck from Dr Akil who has since recommended a neck operation although according to Ms Badal, she cannot afford to undergo any surgery.
She has also received a steroid injection to the left hip (greater trochanteric region).
Ms Badal’s said her current medications are Palexia twice daily, Norflex, Cymbalta and Diazepam.
Ms Badal reported multiple activity limitations due to pain and stated that she can hardly do anything, the reason for which she receives help from NDIS carers.
Mrs Badal complains of widespread pain in the neck, arms/shoulders, whole back and left lateral hip (trochanteric region). She also complains of generalised numbness in the left upper limb as well as frequent dizziness for which she also takes medication (name not recalled).
She reported an inability to grip and hold item, the left arm and hand being worse than the right.
She reported poor standing and walking tolerances (5-10 minutes).
Ms Badal walks only short distances with a stick carried in the right hand. She often uses taxis due to her poor walking tolerance paid for by NDIS.
Ms Badal reported an inability to raise her arms overhead due to severe pain in the neck and shoulders.

Clinical examination

On examination, Mrs Badal presented in a very disabled state. She was of short stature (154cm) weighing 84.6kg, though likely more because she was unable to release the walking stick whilst standing on the scales. There was marked central adiposity.
There were frequent complaints of pain during the history taking as well as during the clinical examination.

Neck

At the commencement of the physical examination, the Medical Assessors encouraged Ms Badal to do her best with all movements, otherwise it may be difficult for the medical assessors to interpret the clinical findings.
On examination of the neck, there was half normal active range of flexion, one third normal active range of extension, minimal leftward rotation and half normal rightward rotation. She complained of pain with all neck movements, worst with leftward movements.
When asked if she could move her head any further to the left, she replied that she could not, or else the neck would “lock”. Therefore, she explained that she must use the whole of her body when needing to turn her head.
Subsequently, the medical examiners asked Mrs Badal to place her hands behind her head, raise arms overhead, and then to reach behind with hands to the lower back. At this stage, she told the examiners that what was being asked of her was “the impossible”.
She said that she could not reach the occiput with either hand. With the left hand, she could just reach the lowermost lumbar spine (with much encouragement).

Shoulders

The assessment of her shoulder movements was made difficult by pain complaints enveloping the neck and shoulder girdles. The assessors suggested that Ms Badal sit to determine if this would make it easier for her to perform the requested shoulder movements (although it did not.) With substantial encouragement, she was able to actively flex the shoulders (one at a time) to 50 degrees and then abduct the shoulders (again one at a time) to 45 degrees. Whilst performing these movements, she complained again of widespread pain over the shoulder girdles/upper back as well as numbness affecting both hands.
Due to high levels of pain complaint affecting the arms, upper limb strength testing was could not be performed and the results were invalidated as a result. Ms Badal could not, when asked, clench either hand, so effectively, there was no active grip demonstrated. The Panel notes this is inconsistent with her observed ability (for example) to hold onto and use her walking stick which she did without complaint of pain in the hand.
On formal sensory examination, there was global numbness in both upper limbs to both pinprick and light touch. She said she felt “nothing” to either pinprick or else light touch testing. This does not represent an anatomical distribution.
Upper limb reflexes were present with a slight, but definite present response and symmetrical.
There was no significant measurable wasting of the arms:
(a) 10cm above the lateral epicondyle, the left was measured at 36cm and the right 36.5cm, and
(b) 10cm below the lateral epicondyle, the left was measured at 26cm and the right at 26.5cm.
She could not sufficiently elevate the upper limbs for formal upper limb neural tension testing.

Lower limbs

On examination of the lower limbs, she could sit with the right lower limb outstretched (reverse SLR) without any difficulty. However, with the left, she was unable to do so, amid complaints of her “bones rubbing and sensations like something was breaking”.
There was marked tenderness at the left greater trochanteric bursa.
Lower limb reflexes were present and symmetrical.
Again, (lower limb) strength testing was invalidated by severe pain complaints especially at the left leg/hip. There was no active movement on request in the left ankle, although the Medical Assessors noted this was incompatible with the claimant demonstrating a slow gait without left-sided toe drag.
There was nearly full active range of motion at the right hip with 110 degrees of flexion, external rotation of 50 degrees, internal rotation of 30 degrees, abduction of 20 degrees (limited by left-sided lateral hip pain) and adduction of 20 degrees (also limited by left-sided lateral hip pain).
Left hip movements were very difficult to assess due to her severe pain complaints. There was frequent crying out, such that the examination had by necessity to be brief and performed only once. All left hip movements were very restricted (less than 50% normal range) and limited by severe pain about the lateral hip. As noted, there was also mild limitation of right hip movements due to contralateral left hip pain, which the examiners deemed not medically credible.
At the conclusion of the examination, the medical assessors drew to the claimant’s attention the inconsistencies and she said she was just doing her best. It was also drawn to her attention that her presentation at today’s examination was much worse than when she was seen by Medical Assessor Kenna on 26 August 2023. At the latter examination, she had reportedly been able to move her neck and arms satisfactorily as well as walk normally. Ms Badal replied that her pain had become “worse and worse” since this time.

CONSIDERATION OF THE ISSUES

The Panel’s approach to certain medical evidence

There are no medico-legal reports from the claimant. On 11 March 2024, the Panel wrote to the claimant’s solicitor to confirm there were no medico-legal reports or that no medico-legal reports were to be relied on in this Review. No response was received from the claimant’s solicitor.
The claimant relies on two imaging studies of the claimant’s back and hips which are addressed to a Dr Toma in Ware Street, in Fairfield.[36] Dr Sanki’s medical practice is at Poulding Street, Fairfield Heights and the practice of Dr S and Dr E Guirguis is in Station Street, Fairfield. The Panel has no records from Dr Toma’s practice or any report from Dr Toma. On 23 March 2024 the Panel caused a message to be relayed to the parties noting this and advising that the Panel would proceed on the basis that Dr Toma has not provided any treatment to the claimant in respect of any of her accident-related injuries. No response was received from the claimant.
[36] Pages 225 and 227 of the claimant’s bundle.

What is the test of causation of injury and treatment?

The Panel notes the decision of AAI Limited t/as AAMI v Phillips[37] where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents. The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery.[38] Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[37] [2018] NSWSC 1710.
[38] Emphasis added.
The above decision suggests the Panel must first determine what injuries were caused by the accident. This in turn requires the Panel to determine:
(a) could the accident cause or materially contribute to the alleged injuries, and
(b) did the accident cause or materially contribute to the injuries alleged?

Could the mechanism of the accident have caused the claimant’s alleged injuries?

The claimant was a passenger in a car that was involved in a collision from the right. She told Dr Hanna she was involved in a collision from the left. The contemporaneous records support an impact from the right. The single report to Dr Hanna of an impact from the left the Panel accepts as either an unintentional error on the claimant’s part or Dr Hanna’s part.
The claimant told Dr Doig that emergency services attended however there is evidence that the police did not attend (the police report) and there is no evidence that ambulance or the fire brigade attended. Medical Assessor Kenna has a history that ambulance did not attend. The claimant says she was not taken to hospital and did not go to hospital.
The claimant told Medical Assessor Samuell she hit her head on something in the car and felt a big pain in her head. Ms Badal told Medical Assessors Lahz and Gorman that she did not hit any part of her body in the car.
The claimant told Dr Doig the family car was written off and told Medical Assessor Samuell that she was taken home by her “in-laws”. In her statement she says the family vehicle was towed. The claimant is clear that the airbags in the family vehicle did not deploy.
On the basis that the claimant’s car was towed and eventually written off and that there was a collision from the right suggests to the medical members of the Panel that the likely forces involved in this accident could have caused an injury to the claimant’s neck, mid and lower back.
The medical members of the Panel are also satisfied that the mechanism could also have caused an injury to the claimant’s left shoulder due to the seat belt passing over that part of her body.
The claimant was a passenger and not holding onto the steering wheel or any other part of the car which could cause a strain to the arms and hands, and she denied hitting any part of her body inside the car such as a knee or knees on the dashboard. On the basis of that history from the claimant, the Panel is not satisfied that the mechanism of the accident could have caused an injury to both her hips, both her legs in particular the left knee, the right shoulder and both arms and hands.

What injuries does Ms Badal allege were caused in the accident?

Records of Dr Guirguis includes instances of neck pain, lower back pain, arm and leg pain before the accident which have been investigated with radiological imaging, specialist referral and treated with medication. Significant psychological injury is also indicated in the context of the claimant’s migration to Australia and ongoing stress and anxiety which has waxed and waned.
The Panel does not accept the claimant’s history that before this accident she was well and had only had minor “normal” issues with her musculoskeletal system.
The claim form alleges injuries to the neck, both arms and hands, the mid lower back and the left leg and hip. The particulars of injuries received (filed with the application for general damages) includes injuries to the lower back, right leg and the left knee.

Did the accident cause the injuries alleged by the claimant?

No structural injury

Ms Badal said on specific questioning that there was no direct impact to any part of her body with the interior of the car during the accident.
The Medical Assessors are of the view that the mechanism of the motor accident is not one capable of causing structural injury to the spine, shoulders, knees or hips. As a passenger, the Panel observes that the left shoulder (where the seat belt goes) could have been injured by a jolt in the impact.
While the claimant did not bring her radiology with her, the Panel notes there is no evidence in the imaging of any structural injury such as fractures, dislocations, complete or partial rupture of tissue.

Absence of objective findings

Ms Badal complained of severe, widespread pain throughout the examination, associated with voluntary self-limitation of movement. The Medical Assessors were unable to make any objective clinical findings on examination of Ms Badal to support her complaints.
There were, for example, no objective neurological abnormalities such as reflex asymmetry, muscle wasting or focal sensory loss on testing which might explain her symptoms. On the basis of the normal neurological findings, the Panel is able to exclude any nerve root injury as the cause for the claimant’s symptoms.

Treating doctors and Dr Toma

The claimant nominated her treating doctors in the claim form as Dr Emil Guirguis and
Dr Sanki. There is no mention of Dr Toma. In particulars provided to the insurer’s solicitor, there is also no mention of Dr Toma as having provided treatment.
The Panel advised the claimant we would be proceeding on the basis that Dr Toma was not providing treatment to the claimant’s accident-related injuries and the claimant has not responded to that.
This suggests to the Panel that the radiology in September 2017 requested by Dr Toma was not related to any injury sustained in the accident and that therefore the claimant’s hip and lumbar spine were not injured in the accident.

Pre-accident conditions

A review of the claimant’s medical records indicates complaints of lumbar spine pain in 2014 as well as neck, knee pain and left hip pain not long before the subject motor accident. In 2016, there were also complaints of numbness affecting both hands, for which she consulted Dr Teychenne (neurologist) who diagnosed her with bilateral carpal tunnel syndrome. He also referred her for investigation of neck complaints.
The medical members of the Panel note the records indicate complaints to the same parts of her body before the accident and generalised all body pain and psychological symptoms. The pattern of complaint is similar after the accident. This is particularly evident when comparing the entry in Dr Guirguis’ notes of 14 December 2016 (before the accident) and the entry on 6 October 2017 (after the accident) which are almost identical.

Absence of records of early treatment

Ambulance personnel did not attend the accident scene and the claimant did not attend a hospital after the accident.
There were several consultations with Dr E and Dr S Guirguis within the first two weeks of the accident, in which no reference is made to the motor accident. On enquiry, Ms Badal could not provide a credible explanation for this.
The first mention of the motor accident (in the medical notes) occurred in Dr Sanki’s records on 22 September 2017 although the Panel notes the referral from Dr Guirguis to Dr Sanki does not mention the car accident at all.
At the first examination with Dr Sanki, Ms Badal complained of neck, thoracic and lumbar spine pain associated with left upper limb weakness and numbness affecting both hands. There was no complaint of hip or knee injuries.
On 5 October 2017, Dr E Guirguis was told of neck and lower back pain only. The next day he records that the claimant’s neck symptoms were radiating between the shoulders and to the upper limbs (arms, hands and fingers) but there were no complaints of lower back pain.

What injuries were caused by the accident?

Taking into account all of the above factors, the Panel finds on the balance of possibilities that Ms Badal incurred soft tissue injuries to her neck, thoracic spine and lumbar spine which have aggravated or exacerbated pre-existing degenerative changes evidenced in the radiology and records of previous complaint in Dr Guirguis’ records.
The Panel is not satisfied on the balance of probabilities that the claimant did injure her left shoulder in the accident because there is no specific complaint of a left shoulder injury recorded in the contemporaneous records. Symptoms are not recorded in the GP records until June 2020, a considerable period after the motor accident.

It is the clinical view of the medical members of the Panel’s view that any aggravation or exacerbation of these degenerative changes has ceased for the following reasons:
(a)    it is nearly seven years since the accident any physical response to soft tissue injuries should have resolved by now;
(b)    the pre-accident records indicate that the claimant had previous episodes of pain in the same areas of the body mentioned indicating degenerative changes in those areas had been symptomatic before the accident;
(c)    there are symptoms in multiple body parts with no significant support in the radiology and no objective signs on clinical examination;
(d)    Ms Badal has received multiple treatment interventions, including long-term physiotherapy, hydrotherapy, cervical steroid injections, left hip bursa injection, and medications (analgesics, antidepressants, anticonvulsant medications for neuropathic pain) without, in her view, any discernible improvement in her day-to-day function or reported pain levels, and
(e)    Ms Badal says things are getting worse and worse and not better. It is the clinical judgment of the medical members of the Panel that this complaint of worsening symptoms reflects a worsening of the degenerative conditions underlying the initial aggravation or any exacerbation caused by the accident.

IS THE TREATMENT REASONABLE AND NECESSARY IN THE CIRCUMSTANCES?

In Diab v NRMA Ltd[39] at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme (which has a test of “reasonably necessary” for treatment):
(a)    the appropriateness of the treatment in dispute;
(b)    the availability of alternative treatment;
(c)    the cost effectiveness of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the appropriateness of the treatment.
[39] [2014] NSWWCCPD 72 (Diab).
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether the 11 types of treatment in dispute in Ms Badal’s case are “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must, in the Panel’s view, refer to the particular circumstances of the claimant in the proceedings before the Panel.
The words “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment (causation) because there is a separate and distinct dispute type which deals with that (related to the injuries caused by the accident). It may be reasonable and necessary for a claimant to have certain treatment to alleviate symptoms from an injury or a condition but if the injury or the condition was not caused by the accident, it will not “relate to the injury caused by the accident” and cannot be allowed.

Future GP consultations per year

The neck and back soft tissue injuries sustained in the lower back were very mild. There is no clinical need for ongoing GP consultations in relation to Ms Badal’s soft tissue injuries. The proposed consultations are not reasonable and necessary in the circumstances.

Left C5/6 foraminotomy

Ms Badal does not demonstrate clinical evidence of a C6 radiculopathy, as defined within the Guidelines. On the contrary, the clinical findings are those of widespread, non-specific pain, not consistent with any specific neurological condition.
The Medical Assessors consider that an operation should not be performed solely for a radiological finding. An operation should be done only if the clinical findings correlate with the radiological findings, which in this case, they do not. The proposed cervical spine surgery is not reasonable and necessary in the circumstances. In fact, it is the clinical judgment of the Medical Assessors that a surgical procedure would likely worsen Ms Badal’s condition.

Future physiotherapy, hydrotherapy and remedial massage (fortnightly)

Ms Badal says she is receiving physiotherapy paid for by the NDIS. The claimant did not inform the examining Medical Assessors that she is currently having any hydrotherapy or remedial massage. The claimant says she has received no functional or symptomatic benefits from any of these therapies and says she is getting “worse and worse.”
There is no indication for continuation of passive physiotherapy treatment or remedial massage or more active hydrotherapy in that case. Physical therapies should not continue, in the Medical Assessor’s clinical judgment unless it is helpful and achieving sustained benefit.
Further physiotherapy, hydrotherapy and remedial massage is not therefore reasonable and necessary in the circumstances. It is the clinical judgment of the medical members of the Panel that passive treatment interventions are not indicated for patients with chronic pain and will not give rise to worthwhile, enduring alteration in either pain complaints or else function. Rather, passive interventions such as remedial massage only reinforce the self-perception of disability and associated activity limitations.

Radiological investigations every three years

Further radiological investigations are not reasonable and necessary in the circumstances. Any radiological changes that may occur in the future, more than five years after the accident, such as worsening degenerative change) are not related to the accident but the underlying condition.
The claimant has already undergone extensive imaging investigations before and since the motor accident, without apparent benefit. Further radiological investigations are, in the clinical view of the Medical Assessors more likely harmful given unnecessary exposure to radiation whilst also serving to reinforce the claimant’s unhelpful beliefs regarding the severity of physical disability and associated voluntary activity limitations.
Radiological investigations every three years are therefore not reasonable and necessary in the circumstances.

Future pain management and rehabilitation

The claimant is unlikely to benefit from rehabilitation services and multidisciplinary pain management given her non English-speaking background, cultural and psychosocial factors, the length of time elapsed since the accident and the resistance of symptoms/presentation to the multiple treatment interventions applied to date.
The claimant has demonstrated to the examining Medical Assessors that she is not open to new ways of thinking about, and managing, her persistent pain. An openness to a change of management approach would be necessary for any benefits to be obtained from a multidisciplinary pain management programme and rehabilitation. Currently, she displays many unhelpful ideas and beliefs about her condition. She views herself as an invalid and this has been reinforced by the provision of carer assistance for many activities of which she would be capable and prescription of long-term opioid medications, which are not clinically indicated for chronic (benign) pain syndrome.
Future pain management intervention and rehabilitation services are not reasonable and necessary in the circumstances.

Past and future domestic assistance (0-17.5 hours per week)

The Panel is satisfied on the balance of probabilities that the claimant would have required domestic assistance with heavy household tasks for up to three months after the accident as a result of her soft tissue injuries.
Thereafter, the symptoms had reduced to a level whereby Ms Badal was capable of resuming her chores albeit with pacing. She had soft tissue injuries only, previous symptoms in her neck, lower back and left hip and no further assistance would be reasonable and necessary in the circumstances.

IS THE TREATMENT RELATED TO THE INJURIES CAUSED BY THE ACCIDENT?

In summary, the Panel is satisfied on the balance of probabilities that:
(a)    the claimant could have, and did injure her neck, middle and lower back in the accident;
(b)    the claimant could have, but did not injure her left shoulder in the accident;
(c)    that the nature of the injuries were soft tissue injuries on a background of pre-existing degenerative changes which were aggravated or exacerbated in the accident, and
(d)    the aggravation or exacerbation has ceased and any symptoms the claimant is currently experiencing in her neck and back and elsewhere are not caused by the accident.
There is only one claim for past treatment and that is “0-17.5 hours per week of domestic assistance arising from physical injuries caused by the accident from 30 August 2017 to the date of the assessment.” The Panel is satisfied on the balance of probabilities that the claimant’s soft tissue injuries would have caused a need for assistance with the heavier domestic chores such as gardening, home maintenance, vacuuming and bed making for the first three months after the accident. Past domestic treatment is therefore related to the injuries caused by the accident.
The Panel notes that the remaining 10 of the 11 disputed treatment types, concern treatment to be provided to the claimant (that is future treatment).
As the Panel has found that the claimant is no longer experiencing pain or symptoms as a result of the injuries caused by the accident if follows that any treatment addressing that pain or those symptoms is not related to the injuries caused by the accident.

CONCLUSION

While the Panel has come to the same conclusion as Medical Assessor Kenna on 10 out of the 11 treatment types referred for assessment, the Panel has come to a different view in respect of past domestic assistance.
The Panel will therefore revoke the certificate and issue a fresh certificate.

[2024] NSWPICMP 208

5 April 2024