Bana v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Bana v AAI Limited t/as GIO [2024] NSWPICMP 727
CLAIMANT:	Nauzer Bana
INSURER:	GIO
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Trudy Rebbeck
DATE OF DECISION:	22 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about treatment; physical injury; treatment standard physiotherapy consultation, eight sessions, between fortnightly and monthly; Medical Assessor (MA) Home concluded that the treatment was not reasonable and necessary; MA Home concluded that the treatment will not improve the recovery of the injured person; Medical Review Panel (Panel) found that the motor accident did cause the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries, being soft tissue injuries; the Panel found that the treatment was related to injuries caused by the motor accident; Diab v NRMA Ltd considered; the Panel found that the treatment is not reasonable and not necessity and will not improve the recovery of the injured person; Held – the treatment is not reasonable and not necessity and will not improve the recovery of the injured person; the Panel affirmed the earlier certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Affirms the certificate issued by Medical Assessor Alan Home dated 2 June 2023. 2. Certifies that the treatment in dispute does relate to the injury caused by the motor accident but the treatment in dispute is not reasonable and not necessary and will not improve the recovery of the injured person.

STATEMENT OF REASONS

INTRODUCTION

Nauzer Bana (the claimant) asserts that various injuries were sustained as a result of a motor vehicle accident on 13 June 2018 (the accident).
AAI Limited trading as GIO (the insurer) is the relevant insurer.
The claimant lodged an Application for Personal Injury Benefits arising out of the motor accident with the insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.
Statutory benefits are payable by the “relevant insurer” in accordance with Part 3 of the MAI Act and include treatment and care benefits under Division 3.4.
Unlike the previous motor accident compensation scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The mechanism for the claimant to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b):
“[W]hether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care).”
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
A medical assessment was conducted by Medical Assessor Alan Home who subsequently provided a certificate dated 2 June 2023 (the Initial Assessment).

The medical assessment of Medical Assessor Alan Home dated 2 June 2023

The following treatment was the subject of the dispute:
(a) the Allied Health Recovery Request No 5 dated 20 September 2021, described the services recommended being Standard physiotherapy consultation, eight sessions, between fortnightly to monthly as needed.
The precise details of the area to be treated was not identified nor the specific injured part of the body that was to be treated.
Medical Assessor Alan Home found that the cervical spine injury injury was caused by the motor accident.
Medical Assessor Alan Home did not make express finding about whether other injuries were or were not caused by the accident.
Medical Assessor Alan Home concluded that the treatment was not reasonable and necessary.
Medical Assessor Alan Home concluded that the treatment will not improve the recovery of the injured person.
The claimant lodged an application for review of the assessment of Medical Assessor Alan Home.

The review

On 30 August 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Personal Injury Commission (Commission) then convened a panel to conduct the review.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
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 decision maker. A ‘new decisionmaker’ 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 provisions apply. The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 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 the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.
Whilst the review is a new assessment it occurs in the context of the initial decision and the determination there was reasonable cause to suspect a material error in that assessment.
Both the claimant and the insurer are legal represented and had the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MIA Act.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Review Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.

The claimant’s submissions

The claimant considered that the contention, under the heading "Assessment of Treatment and Care – Causation" that the “ …request for further physiotherapy treatment pursuant to AHRR No.5 dated 20/09/2021 does not relate to the injury caused by the motor accident.” was inconsistent with his finding on page 10 of the certificate.
Where under the heading "CONCLUSION - TREATMENT DISPUTE" the Assessor stated that “I find that the proposed treatment does directly relate to the injuries sustained in the subject motor vehicle accident.”
The claimant contended that it is clear from his reasoning throughout the certificate that this latter conclusion is to be preferred.
The claimant noted that there was no clinical examination by Medical Assessor Home of the claimant's lumbar spine. At the end of page 8 (under the heading "Diagnosis, Causation and reasons") Medical Assessor Home finds that the claimant suffered a cervical spine injury in the accident. He says nothing about, and has failed to determine, any lumbar spine injury and the need for treatment to that part of the body and/or the reasonableness of such treatment, or otherwise.
In considered the proposed treatment against the criteria for reasonable and necessary Medical Assessor Home relied upon material and documents that were not submitted by the parties, nor were they made available to the parties.

The insurer’s submissions

The insurer agrees that, on the face of the certificate, there appears to be an obvious error.
The insurer agrees that the thrust of the Medical Assessor’s determination is that the proposed treatment is causally related to the injuries sustained in the motor vehicle accident.
Given this inconsistency, the insurer submits that the obvious error in the certificate should be corrected, and the certificate reissued. The insurer submits that this is not however a material error which affects the overall determination that treatment was not reasonable or necessary or likely to improve the injured persons recover.

Material before the Review Panel

The parties provided documentation to the Review Panel.
The insurer provided a bundle of documents “Nauzer Bana - Insurer's Bundle of Documents (1)” of documents being 381 pages.
The claimant provided a bundle of documents “Index for Supporting Docs re PIC Review of treatment decision of Dr Alan Home re physiotherapy treatment - lodged in PIC 31.10.2023 (indexed and paginated)” being 92 pages.
The insurer relied upon undated submissions dated 1 February 2022 described as “Insurer’s reply to claimant’s application for review – Medical assessment”.
The claimant relied upon submissions dated 30 June 2023.

Issues for the review

Unlike the previous motor accident compensation scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The mechanism for the claimant to recover the cost of treatment and care it is asserted was caused by the accident is through the statutory benefits claim.
Section 3.24 provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person
…
(c) the reasonable cost of treatment and care,
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Schedule 2, cl 2(b) of the MAI Act, involves a determination of two issues:
(a) whether the treatment and care is reasonable and necessary, and
(b) whether the treatment and care relates to the injury caused by the motor accident.
Schedule 2, cl 2(c) of the MAI Act involves a determination of whether treatment or care provided to an injured person will improve the recovery of the injured person.

Causation

The Motor Accident Guidelines set out the relevant considerations in relation to causation in Part 6 specifically clauses 6.5, 6.6 and 6.7.
In AAI Limited v Phillips [2018] NSWSC 1710 Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accident Compensation Act 1999.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Review 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.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.
The Allied Health Recovery Request No 5 dated 20 September 2021, did not include precise details of the area to be treated nor the specific injured part of the body that was to be treated.
Medical Assessor Alan Home found that the cervical spine injury injury was caused by the motor accident.
Medical Assessor Alan Home did not make express finding about whether other injuries were or were not caused by the accident.
We considered the Allied Health Recovery Request No 5 in the context of Allied Health Recovery Request No 4.
The Allied Health Recovery Request No 5 dated 20 September 2021 includes under the heading “Diagnosis” the following “Mechanical chronic low back pain and stiffness, episodic pain flareups”, “Mechanical chronic neck pain, whiplash associated disorder with episodic pain flareups” and “osteochondral lesion right elbow”.
The Allied Health Recovery Request No 5 dated 20 September 2021 describes the “Current signs and symptoms” as “Constant low-level pain/stiffness in the lower back and neck regions …”, “Recent aggravation of back pain …” and “Intermittent low back and neck pain … during acute flareups … lumbar spine… “ and “increased back pain and stiffness since 17 May … ongoing symptoms, cervical spine … posterior left sided neck pain … marked tenderness over … spine, upper traps and levator scapulae.”
The Review Panel’s interpretation of the Allied Health Recovery Request No 5 dated 20 September 2021 was that it identified injuries to the cervical spine and the lumbar spine, and it appeared that the treatment was related to the cervical spine and the lumbar spine. There is also mention of injury to the right elbow, but it is not apparent that any treatment was to be provided in relation to the left elbow injury.
Medical Assessor Alan Home, in the certificate dated, recorded the history of the accident and onset of symptoms, as follows:
“Mr Bana states that he sustained injuries in a motor vehicle accident on 13 June 2018 as a pedestrian walking along a footpath in Wynyard Park. There was an obstruction on the footpath which he was required to walk around and he therefore stepped onto the road.
At that time, he was struck by a bus and knocked towards the obstruction in the form of a mobile road sign. He recalls that by-standers assisted him. He recalls early pain in the region of the right shoulder, right trunk and right elbow. His neck was also painful.
Subsequently, he sat resting in a park with early symptoms of psychological shock, nausea and dizziness. He recalls that he caught a bus toward Dee Why but alighted due to urgency of micturition at Manly Vale. He subsequently took a taxi to his doctor’s practice at Dee Why. He attended Dr Sena.
He received early treatment with analgesia, hot and cold packs. X-rays of the right elbow were arranged although the x-rays were initially reported as showing a possible fracture. Subsequent x-rays performed three months later excluded an olecranon fracture.
However, Mr Bana recalls early severe pain at the posterior aspect of his right elbow. He points to the olecranon process.
He said that due to persisting neck and low back pain he was referred to a physiotherapist in Manly.”
We reviewed the documentation.
The Personal Injury Claim Form dated 29 June 2018 includes reports of injury to the right shoulder and right arm, neck, right shoulder, right elbow and right knee.
The clinical notes from Cam Walsh, physiotherapist includes reports of injury to the right shoulder, right elbow, neck pain, whiplash, a lot of stiffness, occasional pins and needles in the right hand.
Dr Sena on 13 June 2018 notes right-sided neck pain, right elbow, right shoulder and restricted right shoulder motion.
The physiotherapy notes from Beaches Life Physiotherapy include a flare-up of the left side of the neck and right side of the lower back. Restricted neck motion in right lateral flexion and rotation, lumbar spine motion relatively poor.
The material available provides support for contemporaneous reports of the right shoulder, right elbow and neck injuries.
Medical Assessor Buckley in the certificate dated 1 February 2021 accepted that the cervical spine injury was caused by the motor vehicle accident. Medical Assessor Buckley accepted the is a relationship between the flare ups of neck pain and the subject accident.
The evidence in relation to the injury to the lumbar spine is less clear.
Dr James Bodel, orthopaedic surgeon provided a report dated 12 June 2020. Dr Bodel accepted that as a result of the motor accident the claimant suffered injuries including to the head, the neck (cervical spine), lower part of the back (lumbar spine), right shoulder, right elbow and pain in both knees.
Dr Anthony Smith, orthopaedic surgeon provided a report dated 9 March 2020. Dr Smith accepted that as a result of the motor accident the claimant suffered an aggravation of cervical and lumbar spine degenerative disease along with bilateral knee osteoarthritis.
The evidence available was consistent with the claimant suffering an injury to the cervical spine, lumbar spine, right shoulder, right elbow and right knee in the motor accident.
That Review Panel considered that:
(a)    the injury to the cervical spine was a soft tissue injury with aggravation of degenerative disease.
(b)    The injury to the lumbar spine was a soft tissue injury with aggravation of degenerative disease.
(c)    The injury to the right elbow was a soft tissue injury.
(d)    The injury to the right shoulder was a soft tissue injury.
As noted above, the Review Panel’s interpretation of the Allied Health Recovery Request No 5 dated 20 September 2021 was that the treatment was related to the cervical spine and the lumbar spine, and these were the relevant injuries.
Both of the Medical Assessors made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries.
We accepted the medical determination of Medical Assessors that the motor accident could have caused or contributed to the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries.
Having considered the dynamics of the accident, the reported symptoms of the cervical spine, lumbar spine, right shoulder, right elbow and right knee pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine, lumbar spine, right shoulder, right elbow and right knee and the consideration of these issues by the other medical professional we accepted that the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries were caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries, being soft tissue injuries.

We accepted, on the balance of probabilities, that the treatment, the Allied Health Recovery Request No 5 physiotherapy treatment, was related to injuries caused by the motor accident.

Reasonable and necessary in the circumstances

In order for the insurer to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. This test is different to the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”.
As there are few cases in respect of motor accident treatment disputes, the workers compensation scheme cases are therefore of some assistance.
In Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(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.
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 in the proceedings before the Review Panel.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment (that is, causation). It may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury but if the injury was not caused by the accident, the treatment will not be allowed.
While the word “reasonably” modifies the word necessary in the workers compensation scheme, the words “reasonable and” do not moderate the word necessary but adds a separate and distinct test. In the motor accidents scheme treatment must be both 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 and the claim in the proceedings before the Review Panel.
We then need to consider whether the Allied Health Recovery Request No 5 dated 20 September 2021, described the services recommended being standard physiotherapy consultation, eight sessions, between fortnightly to monthly as needed being treatment to the cervical spine and lumbar spine (“the AHRR5 physiotherapy treatment”) was reasonable and necessary.

Whether the Allied Health Recovery Request No 5 physiotherapy treatment is reasonable and necessary in the circumstances?

Medical Assessor Alan Home, in the certificate dated , recorded the symptoms, as follows:
“Mr Bana reports constant symptoms of neck stiffness with intermittent neck pain present several hours daily. There is exacerbation of neck pain with prolonged static neck postures. There is a sensation of tightness in the paravertebral musculature.
He reports some radiation distally towards the back. There is no significant upper limb pain. There were early symptoms of bilateral hand paraesthesia which has since settled.
At the right elbow he describes local pain at the olecranon. He is intolerant of leaning over the elbow. He has regained a full range of motion at the joint. There is intermittent swelling.
He describes intermittent low back pain associated with prolonged sitting. There is no distal radiation of pain. He states he has now developed numbness in the lateral left calf.
He said that due to persisting neck and low back pain he was referred to a physiotherapist in Manly.
He recalls that treatment has included passive techniques such as dry needling and deep tissue massage and advice regarding exercise. Following passive treatment, he reports symptom benefit and an improvement in range of motion for up to one week, sometimes ten days.
He attends at approximately fortnightly intervals. He has continued attendance throughout the period since the accident despite cessation of funding during several periods.
He reports the current use of Voltaren anti-inflammatory medication, 50 milligrams,
4-5 days weekly.
He applies Voltaren gel daily.
He also takes medications to manage unrelated complaints, including Thyroxine, Urorec, Mirtazapine and Metformin.”
Medical Assessor Alan Home recorded the functional capacity and reported tolerances as follows:
“Mr Bana is right hand dominant. He reports a sitting tolerance of 30 minutes, a fair tolerance for driving, and a walking tolerance for 15-20 minutes. There is difficulty with deep crouching and kneeling due to unrelated knee complaints. Stair climbing is also affected by his knees.
Mr Bana is independent for activities of self-care. He estimates a capacity to lift 8 kilograms well positioned.”
One of the issues raised by the claimant noted that there was a failure to determine, any lumbar spine injury and the need for treatment to that part of the body and/or the reasonableness of such treatment, or otherwise.
We addressed the issue of injury to the lumbar spine but the issues in relation to whether the treatment was reasonable and necessary remained.
The claimant asserted that in considering the proposed treatment against the criteria for reasonable and necessary Medical Assessor Home relied upon material and documents that were not submitted by the parties, nor were they made available to the parties.
Whilst that is correct, in considered the proposed treatment against the criteria for reasonable and necessary Medical Assessor Home also relied upon a significant volume of material and documents that were submitted by the parties.
We considered the treatment history.
Dr Anthony Smith, orthopaedic surgeon provided a report dated 9 March 2020. Dr Smith considered that the claimant had recovered from the aggravations and would have recovered after three months at most from any effects of the accident. Dr Smith concluded that the claimant required no treatment now or in the future as a result of the subject accident.
Dr James Bodel in the report dated 12 June 2020 did not express any specific view in relation to the need for this physiotherapy treatment.
Medical Assessor Buckley in the certificate dated 1 February 2021 was considering whether the request for an MRI of the cervical spine is reasonable and necessary in the circumstances.
Medical Assessor Buckley noted the report of Dr Sena provided as a late document (probably the report dated 23 March 2020) identified reason for the request for an MRI cervical spine as a result of failure to improve with treatment of physiotherapy.
Medical Assessor Buckley in the certificate dated 1 February 2021 then accepted that the request for an MRI of the cervical spine was reasonable and necessary in the circumstances.
In a report dated 2 March 2022 Dr Sena noted that despite attending for regular physiotherapy there had been no major progress in the last 12 months and the claimant may have reached a plateau. Dr Sena expressed the view that without the treatment his condition could have worsened.
In a report dated 26 April 2020 Dr Sena under the heading “Prognosis” noted that the claimant would continue to require treatment for the flare ups of the pain in the neck, lower back and right knee. Dr Sena then commented “This is due to the underlying degenerative process which pre-date his accident”.
We noted that the prior treatment, Allied Health Recovery Request No 4 dated 31 May 2021 was provided by Alexander Barr.
The content of the request from Alexander Barr is very similar, if not identical to, the content of Allied Health Recovery Request No 5 in terms of the “Diagnosis” the “Current Signs and symptoms”.
In addition, the “Client Goal 1” was “able to carry 10 kilograms pain free for household and activities of daily living”.
The content of Allied Health Recovery Request No 5 included Client Goal 1” was “able to carry 10 kilograms pain free for household and activities of daily living” and “Client’s goal 2” was “able to walk without pain for longer than 30 minutes”.
We reviewed the clinical notes in the period leading up to February 2023. They do not suggest any significant improvement over the last few years.
We reviewed the Allied Health Recovery Requests in the period leading up to the 20 September 2021 and the report of Alexander Barr dated 21 November 2022 from Beaches Life Physiotherapy.
Medical Assessor Alan Home concluded:
“I do not find the treatment is designed to help the injured person get back to usual duties as the claimant has continued to work as an auditor. I do not find the claimant’s work capacity has increased as a consequence of his intermittent physiotherapy treatment.
…
I cannot determine from my review of the medical file and the claimant’s clinical presentation that there has been any substantive improvement in the claimant’s condition over the past 2-3 years despite continuous periods of physical therapy.
The range of active motion at the current assessment is virtually identical to that set out by Assessor Buckley at the time of his assessment on 18 January 2021, more than 2 years ago, and to the examination findings set out in the AHRR physiotherapy reports.
Similarly, the complaints of chronic stiffness, radiating pain to the shoulders and associated functional disabilities are identical to those set out in the previous reports.”
Dr Sena noted that by about March 2020 the claimant had not obtained significant improvement with treatment from physiotherapy.
It appears from the certificate of Medical Assessor Buckley that he also accepted that by about March 2020 the claimant had not obtained significant improvement with treatment of physiotherapy.
Having reviewed both the Allied Health Recovery Request No 4 dated 31 May 2021 and the Allied Health Recovery Request No 5 dated 20 September 2021 the evidence was to the effect that following the treatment from Allied Health Recovery Request No 4 dated 31 May 2021 the claimant had not obtained significant improvement with treatment of physiotherapy.
This appears to be consistent with the view of Medical Assessor Alan Home.
In terms of the factors identified in Diab we considered that (ignoring the effectiveness) the treatment was appropriate.
The evidence did identify the availability of alternative treatment, in that Alexander Barr suggested the alternative was for the extended use of painkillers and/or anti-inflammatory medications. The evidence from Dr Smith suggested that no treatment was required.
In relation to the cost effectiveness of the treatment, the cost was not excessive but the extent of the effectiveness of the treatment was an issue. In the circumstances where the evidence was to the effect that the benefit, if any, had been minimal, it was hard to say the treatment had been cost effective.
As noted above, in terms of the actual or potential effectiveness of the treatment the evidence was to the effect that the benefit, if any, had been minimal.
It was difficult to expect that with the extend of the physiotherapy treatment that had been provided that the additional treatment contemplated would be any more effective than the prior treatment.
There was divided medical opinion by medical experts of the appropriateness of the treatment.
Having evaluated the various issues we concluded that the treatment was not necessary.
Having evaluated the various issues we concluded that the treatment was not reasonable.

Whether the Allied Health Recovery Request No 5 physiotherapy treatment will improve the recovery of the injured person?

In Diab two of the factors that could be considered were the actual or potential effectiveness of the treatment, and the acceptance by medical experts of the appropriateness of the treatment.
These issues were considered above.
The evidence from Dr Smith suggested that no treatment was required.
The opinion of Dr Sena in about March 2020 was that the claimant had not obtained significant improvement with treatment of physiotherapy.
Medical Assessor Buckley also accepted that by about March 2020 the claimant had not obtained significant improvement with treatment of physiotherapy.
The material set out in the Allied Health Recovery Request No 4 dated 31 May 2021 and the Allied Health Recovery Request No 5 dated 20 September 2021 was to the effect that the claimant had not obtained significant improvement with treatment of physiotherapy.
On the available evidence we could not be satisfied that the Allied Health Recovery Request No 5 physiotherapy treatment will improve the recovery of the injured person.

Conclusion

Although the Review Panel has arguably come to a different conclusion in respect of whether the treatment in dispute is related to the injuries caused by the accident, the Review Panel agrees with Medical Assessor Home and is of the view that the treatment in dispute is not reasonable and not necessity and will not improve the recovery of the injured person.
The Review Panel therefore affirms the certificate of Medical Assessor Home.

[2024] NSWPICMP 727

22 October 2024