Bungate v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Bungate v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 562
CLAIMANT:	William Bungate
INSURER:	IAG Ltd t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	31 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; permanent impairment; review of Medical Assessment Certificate (MAC); pedestrian accident with claimant’s head hitting windscreen; Commission referred closed head injury; MAC assessed claimant’s closed head injury as 4% whole person impairment; re-examination; claimant was cooperative and consistent; accident was capable of causing referred injury; 14% permanent impairment; Held –different clinical findings and impairment to original assessment; MAC revoked; permanent impairment greater than 10%; combined impairment certificate revoked and replacement issued.
DETERMINATIONS MADE:	REPLACEMENT CERTIFICATE OF DETERMINATION REVIEW PANEL CERTIFICATE Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 Following reviewing whether the accident on 22 October 2017 caused injuries to the claimant resulting in permanent impairment greater than 10%, the Review Panel determines: 1. In respect to the disputes under s58 (1) (a), (b) and d) of the Motor Accidents Compensation Act 1999, about whether treatment is reasonable and necessary, and 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% and, the Review Panel revokes Senior Medical Assessor Cameron’s certificate dated 28 June 2024 and issues a new certificate. 2. This Panel also revokes the combined impairment certificate of lead Medical Assessor Curtin dated 5 September 2024. A replacement combined impairment certificate will be drawn separately. 3. The motor accident caused the following injuries, which are assessed as a permanent impairment of 14%, which IS GREATER THAN 10%: · closed head injury –Severe traumatic brain injury with GCS of 7/15 and PTA duration of six days ASSESSMENT OF TREATMENT – CAUSATION Certificate issued under section 61 of the *Motor Accidents Compensation Act 1999* the following treatment: · Monthly GP Consultations for the claimant’s life expectancy are not related to the accident; · Monthly GP consultations for painkillers, investigations and specialist referrals are related to the accident but for no longer than six months afterwards; · An initial series of (up to six) consultations with a pain specialist for headache and neck pain are related to the accident to determine if there is any effective pharmacological or else procedural treatment interventions for headache and neck pain caused by the motor accident; · An initial series of (up to six) consultations with a neurologist for headache are related to the accident to determine if there are any effective treatment interventions; · Further orthopaedic consultations are not related to the accident; · Repeat radiological investigations are not related to the accident; · The short-term use of analgesia for up to 12 weeks post-accident is related to the accident; · Physiotherapy/Hydrotherapy/Massage are related to the accident; but not beyond 12 weeks post accident. · Monthly pain clinic attendances for the remainder of the claimant's life are not related to the accident; however, a referral to a pain management clinic is causally related for a limited series of attendances to determine if there are any useful interventions for the claimant’s headaches, to trial these for efficacy and for pain management services to continue only if interventions provide worthwhile symptomatic relief; · Cervical steroid injections are related to neck and head pain induced by the injury caused by the accident; · Cervical spine facet blocks/medial branch blocks with steroid/local anaesthetic are related to chronic neck pain and headache caused by the accident; · Future domestic assistance is related to the accident, and · Past domestic assistance is related to the accident; ASSESSMENT OF TREATMENT – REASONABLE AND NECESSARY Certificate issued under section 61 of the *Motor Accidents Compensation Act 1999* the following treatment: · Monthly GP Consultations for the claimant’s remaining life expectancy are not reasonable and necessary; · Monthly GP consultations for painkillers, investigations and specialist referrals were reasonable and necessary for no longer than six months afterwards; · Pain specialist consultations: An initial series of (up to six) consultations with a pain specialist for headache and neck pain are reasonable and necessary to determine if there are any effective treatment interventions and then to continue only if treatment provides sustained reduction of symptoms; · Neurologist consultations: An initial series of (up to six) consultations with a neurologist for headache are reasonable and necessary to determine if treatment interventions are effective and then to continue only if such interventions provide enduring, worthwhile symptomatic relief; · Orthopaedic consultations are not reasonable and necessary; · Repeat radiological investigations are not reasonable and necessary; · Lifelong analgesia of any description is not reasonable and necessary; · The short-term use of analgesia for 12 weeks post-accident was reasonable and necessary; · Past physiotherapy was reasonable and necessary for no longer than 12 weeks post-accident; · Continuing physiotherapy, hydrotherapy, massage are not reasonable and necessary; · A pain management clinic referral is reasonable and necessary for comprehensive evaluation of chronic neck pain and cervicogenic headache due to the accident; · Monthly pain management clinic attendances for the remainder of his life are not reasonable and necessary; Ongoing pain management attendances are only reasonable and necessary if trialed interventions provide enduring, worthwhile symptomatic relief; · Annual cervical spine steroid injections are not reasonable and necessary lifelong; · Cervical spine facet blocks/medial branch blocks with steroid/local anaesthetic ongoing treatment may be reasonable and necessary, if such treatment interventions prove demonstrably effective and beneficial for the claimant’s neck and head pain; · Future domestic assistance is reasonable and necessary due to the accident. An occupational therapist should determine the reasonable and necessary hours, and · Past domestic assistance is reasonable and necessary due to the accident. An occupational therapist should determine the reasonable and necessary hours.

REASONS

BACKGROUND

On 22 October 2017, a pedestrian being William Bungate (the claimant) was injured in a motor accident (accident) in Canley Vale. He was with his nephew.
There is a history based on various sources of the claimant standing on the footpath preparing to cross the road. A driver stopped and waved Mr Bungate across the road, whereupon the insured car behind that vehicle pulled out and moved forward. The insured car hit him and he was propelled up on the hood hitting the windscreen with his head. He does not remember the impact. His next memory was waking up in Liverpool Hospital after the accident.
The claimant alleged the accident caused the following injuries:
·        left sixth and ninth ribs fractures with a pneumothorax and some pulmonary contusion;
·        left L3 to L5 fractures of transverse processes;
·        right shoulder injury and some right knee grazing;
·        cervical spine injury;
·        fractured right fibula discovered in later imaging;
·        closed head injury, and
·        psychological injury
The claimant’s entitlement to damages and treatment is managed under the Motor Accident Compensation Act (MAC Act).
The medical dispute on permanent impairment and treatment in the Personal Injury Commissions (Commission) has led to the formation of this Panel to review Senior Medical Assessor Ian Cameron’s certificate dated 28 June 2024.
The Commission referred a closed head injury impairment dispute to Senior Medical Assessor Cameron to assess, as well as treatment including domestic assistance.
There is also a dispute between the claimant and the insurer about:
· whether the proposed care and treatment relates to the injury caused by the accident under s 58 (1)(b) of the MAC Act, and
· whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances under s 58(1)(a) of the MAC Act.
The Commission referred the following treatment and domestic assistance disputes for assessment:
·        whether the request for monthly general practitioner (GP) consultations for the remainder of the claimant's life expectancy relate to injuries caused by the accident;
·        whether the request for monthly GP consultations for the remainder of the claimant's life expectancy related to those injuries is reasonable and necessary;
·        whether the request for pain specialist consultations twice per year for the remainder of the claimant's life expectancy relate to the injuries caused by the accident;
·        whether the request for pain specialist consultations twice per year for the remainder of the claimant's life expectancy is reasonable and necessary;
·        whether the request the neurologist consultations twice per year for the remainder of the claimant's life expectancy relate to the injuries caused by the accident;
·        whether the request for neurologist consultations twice per year for the remainder of the claimant's life expectancy is reasonable and necessary;
·        whether the request for orthopaedic consultations twice per year for the remainder of the claimant's life expectancy relate to the injuries caused by the accident;
·        whether the request for orthopaedic consultations twice per year for the remainder of the claimant's life Excellency is reasonable and necessary;
·        whether the request for repeat radiological investigations every four months for the remainder of the claimant's life expectancy is reasonable and necessary;
·        whether the request for analgesic medications (Norgesic and paracetamol) per year for the remainder of the claimant's life expectancy relates to the injuries caused by the accident;
·        whether the request for analgesic medications (Norgesic and paracetamol) per year remainder of the claimant's life expectancy is reasonable and necessary;
·        whether the request for monthly physiotherapy/hydrotherapy/massage therapy the remainder of the claimant's life expectancy relates to the injuries caused by the accident;
·        whether the request for monthly physiotherapy/hydrotherapy/massage therapy for the remainder of the claimant's life expectancy is reasonable and necessary;
·        whether the request for monthly pain clinic attendances for the remainder the claimant's life expectancy relates to the injuries caused by the accident is reasonable and necessary;
·        whether the request for corticosteroid injections and/or nerve blocks per year for the remainder the claimant's life expectancy relates to the injuries caused by the accident;
·        whether the request for corticosteroid injections and/or nerve blocks per year for the remainder the claimant's life expectancy relates to the injuries caused by the accident and is reasonable and necessary;
·        whether the physical injuries give rise to a need for future domestic assistance with such tasks such as cleaning, laundry, vacuuming, ironing, sweeping, gardening and handyman chores from the date of assessment the remainder of the claimant's life expectancy relates to the injuries caused by the accident;
·        whether the request for up to 17.5 hours per week of future domestic assistance with such tasks such as cleaning, laundry, vacuuming, ironing, sweeping, gardening and handyman chores from the date of the accident to the date of assessment relating to the accident is reasonable and necessary;
·        whether the physical injuries give rise to a need for past domestic assistance with such tasks such as cleaning, laundry, vacuuming, ironing, sweeping, gardening and handyman chores from the date of assessment the remainder of the claimant's life expectancy relates to the injuries caused by the accident, and
·        whether the request for up to 17.5 hours per week of past domestic assistance with such tasks such as cleaning, laundry, vacuuming, ironing, sweeping, gardening and handyman chores from the date of the accident to the date of assessment relating to the accident is reasonable and necessary.
The Panel met on 18 November 2024 to discuss how this matter would proceed. The Panel decided Medical Assessor Lahz would re-examine the claimant on behalf of the Panel at the Commission’s medical suites in Sydney NSW.
Medical Assessor Lahz said after she examined the bundles provided that there was deficient information about the claimed head injury. The hospital discharge summary barely mentioned it and there were no ambulance or post-traumatic amnesia (PTA) clinical records. The Panel requested further information comprising the complete acute hospital records inclusive of the PTA (post-traumatic amnesia) monitoring records, after the accident to determine the claimant’s condition with respect to the claimed head injury after the accident.
The re-examination was postponed in order to obtain updated documents, and this appointment occurred on 6 June 2025.

Legislative framework

Compensatory damages under the MAC Act are awarded for losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Limited and restricted non-economic loss damages are provided for in Part 5.3 of the MAC Act. Relevantly, s 131 restricts entitlement to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.

Permanent impairment assessment

Permanent impairment (or whole person impairment or WPI) must be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines or MAPIGS) which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). These are the guidelines applicable to motor accidents in NSW before 1 December 2017.
Brain injuries are assessed under the heading “Nervous system” found in cls [1.156 ] – [1.176] and Table 9 of those Guidelines.

Treatment

Section 83 of the MAC Act obliges insurers to provide treatment throughout the life of a claim if:
(a)    the need for the treatment was caused by the injuries sustained in the accident;
(b)    the treatment is verified, and
(c)    the treatment is reasonable and necessary in the circumstances.
Section 58(1)(a) and (b) of the MAC Act empower the Commission to determine disputes about treatment that arise in the course of a claim.
Medical treatment expenses are treated as damages under the MAC Act. Any expenses the insurer pays under s 83 of the MAC Act will be credited to any assessment or award of damages.

Dispute Resolution

If there is a dispute about the degree of the claimant’s permanent impairment, non-economic loss damages will not be assessed until that dispute is resolved. All medical disputes must be referred to a Commission Medical Assessor to determine. In some cases, such as this one, where the injuries involve different body systems there will be multiple referrals to Medical Assessors.
Part 3.4 of the MAC Act provides for the Commission’s medical assessments. It includes provisions relevant to an original medical assessment such as Senior Medical Assessor Cameron’s, further medical assessments, and the review of medical assessments by this Panel[
Pre-existing impairment is addressed in cls 1.31-1.33 of the Guidelines. Clause 1.34 deals with subsequent injuries.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

ASSESSMENT UNDER REVIEW

Senior Medical Assessor Cameron issued a certificate dated 28 June 2024 which certified that the accident caused a mild traumatic brain injury, which he assessed as 4% permanent impairment.
The Senior Medical Assessor found that the accident caused a significant head impact and there was post-traumatic amnesia, thus satisfying clause 6.164 of the “Guidelines”. It appears that the Senior Medical Assessor was basing his examination on the Motor Accident Guidelines, which is applicable to claims for injuries from 1 December 2017 under the Motor Accidents Injuries Act 2017 (MAI Act).
He assessed mental status impairment related to the traumatic brain injury in accordance with the Modified Clinical Dementia Rating Scale (CDR). The criteria for CDR are set out at table 9 of those Guidelines.
The Senior Medical Assessor dealt with the treatment and care dispute as follows:
(a)    the accident caused multiple injuries and the claimant had recovered reasonably well but with residual symptoms;
(b)    the Senior Medical Assessor found that although the claimant may have needed domestic assistance in the past, those injuries would have only limited him in daily life three to four months after the accident;
(c)    past domestic assistance was related to the accident from the date of accident to the date of the assessment, but he referred calculating hours that assistance was required to an occupational therapist, appointed by the Commission, and
(d)    the proposed future treatments and care, generally, were not causally related to the accident.

EVIDENCE

The documentary evidence before the Panel consists of material in the bundles filed in accordance with the Panel’s directions. The Panel has considered all the relevant material and Medical Assessor Lahz summarised the relevant information in her examination report.
The claimant’s statement dated 12 March 2025 confirmed the history that he is now a man in his 70s, who has always been single and does not have children.
His education ended early, and he always worked in jobs requiring manual handling or machine operating.
Before the accident he injured his left shoulder at work, which resolved with treatment. He also developed chronic lumbar spine condition, which still enabled him to work until the

age 65.
Although he had occasional headaches before the accident, he had not experienced debilitating migraines, which began after this accident.
The statement describes the circumstances of the accident and lists the injuries.
The statement confirms histories given of treatment and continuing debilitating headaches. He is also sensitive to noise and vibration which he avoids by mostly staying in his room and resting.
This statement addresses Senior Medical Assessor Cameron’s certificate and his CDR findings. The reasons refer to the claimant’s “slight difficulties with memory and orientation”, which the claimant disputes, because since the accident he cannot remember names and dates; he relies on a whiteboard to record all his appointments and struggles when he has to travel to an address he has never visited before. He manages this by visiting the address a few days before the appointment to ensure he understands the route and how much time it takes to get there.
The statement submits Senior Medical Assessor also incorrectly recorded the claimant had no limitations regarding judgement and problem solving. The claimant described the symptoms he experiences as not matching the assessor’s findings. The claimant describes a series of continuing limitations, which he submits do not match the certificates findings.
He describes his limitations at home and how he relies on his neighbour Kim Lockley to perform small tasks and check on him.
His neighbour provided her statement dated 7 March 2025 to confirm the services she provides since the accident, her observations about his cognitive functioning and his need for domestic assistance.

Submissions

Claimant submissions

The claimant submits the accident caused a traumatic head injury which has resulted in severe ongoing symptoms, which should be assessed at least as Moderate Traumatic Brain Injury.
There is evidence that the claimant’s symptoms arising from the accident related head and neck injury continue. Since the accident the claimant has experienced dizziness, instability resulting in falls, memory loss, positional vertigo, headaches/migraines, inability to think straight, anxiety associated with symptoms and difficulties with orientation.
The claimant submitted that assessing mental status impairment should be made with reference to the Modified Clinical Dementia Rating Scale, referring to clinical records and reports in respect of the criteria listed for that scale.
The claimant’s symptoms recorded in the clinical records of Liverpool Hospital clearly indicate severe head trauma, which was ongoing throughout his stay at the hospital for a period of eight days. As a result of the severe head injury the Claimant had post-traumatic amnesia for a number of days following the accident, again indicating severe head injury.
The claimant submits that the radiology clearly indicates severe trauma to the spine and head/skull, because CT scans taken at Liverpool Hospital after the accident showed acute displaced fractures of left L3, L4 and L5 vertebrae.
The Liverpool Hospital clinical records identified the claimant displayed vagueness and a deficit of short-term memory during the admission.
A “Falls risk assessment and management plan” (FRAMP) was completed indicating that the claimant was disoriented and his Rankin scale for neurologic disability also noted impairment. The claimant identified as a patient to be located near the nurses’ station if possible or be placed in a high-risk room.
After the hospital discharged him, the claimant complained to his GP about the injuries to his right shoulder, back, neck and that he had severe headaches,
Consultant Physician Neurologist, Dr Ibrahim Hanna saw the claimant on 23 May 2018. Dr Hanna noted a history of ongoing headaches and vertigo since the accident. On 4 June 2018 based on the MRI of the brain Dr Hanna diagnosed an incidental parasagittal calcified extra axial frontal meningioma. Dr Hanna also noted a few areas of high intensity in the deep white matter due to small vessel ischemia. Dr Hanna did recommend further specialist treatment or surgery and suggested conservative treatment.
Dr Akram Bangash of the Liverpool Family Medical Centre referred the claimant for a brain MRI on 26 February 2018. Dr Bangash noted on 4 June 2018, the MRI revealed right posterior frontal meningioma and microvascular ischaemic changes involving the internal capsule and external capsule. The latter was not present on the MRI report dated 22 October 2017, suggesting that the traumatic brain injury may have caused microvascular injury to the brain. The entry on 4 June 2018 by Dr Bangash noted normal flow on Doppler test. No further comments were made in respect of temporal arteritis.
The claimant complained about his severe chronic occipital headaches to Dr Farzana Quader and Dr Akram Bangash throughout 2020-2021. His GP did not refer the claimant for further tests or specialists despite these symptoms.
The Gandangara Health Services’ Dr Timothy Bligh’s records also confirm that the claimant suffered from ongoing headaches, vertigo, and balance problems. The claimant changed his GP in or about August 2023.
The current treating GP’s notes confirm the Claimant’s restrictions arising from the head, neck, shoulder and lumbar spine injuries sustained in the accident.
Dr Bligh noted the accident history with the claimant’s ongoing symptoms associated with severe headaches. Another brain MRI reported on 5 May 2023 compared with the

26 February 2018 MRI of and the MRI of 4 May 2023. The size of the meningioma was found to be similar to that measured immediately following the accident.
Dr Bligh noted on 9 April 2024 the claimant’s “general decline, worsening headaches, more dizziness, more forgetfulness, cannot concentrate, slurs speech, loses track of conversation, feels like getting dementia, feels like headaches /pain root cause, a lot of fogginess when in pain, much clearer headed when not suffering”. “Isolated, no other help - no family.”
Another MRI dated 22 January 2025 noted that the measurements of the frontal lobe meningioma was similar in size compared to the May 2023 MRI and noted mild cerebral and cerebellar atrophy.
The GP arranged an OT assessment to assist with his day-to-day domestic needs arising from the accident.
Before the accident the claimant had occasional headaches, however he was not suffering from debilitating headaches and/or severe migraines.

Insurer submissions

The insurer disagreed with the claimant’s submissions and opposed the application for review. The insurer’s submissions with the bundle did not address the permanent impairment assessment for the claimant’s head injury.
The claimant claims future treatment and past and future domestic assistance as particularised in his section 85A particulars dated 29 May 2023.
The insurer says that the appointed Medical Assessor would determine, based on the evidence, that the claimed care and treatment is neither causally related to the accident nor reasonable and necessary.
In respect of the treatment disputes the Insurer submitted on 14 August 2023 that it relies on orthopaedic surgeon Associate Professor Shatwell’s report dated 1 February 2019.
Associate Professor Shatwell reported that the claimant’s knee and shoulder problems had settled to a large extent although he was still restricted in the right shoulder and had difficulty sleeping on it. The claimant also described minor right knee ache and residual stiffness in the neck.
Associate Professor Shatwell confirmed the claimant’s injuries as fractured ribs, a small left sided pneumothorax and pulmonary contusion, minor displaced fractures of L3, L4 and L5 transverse processes. He commented that the claimant probably had a significant head injury though there was no external sign. Associate Professor Shatwell also noted the right proximal fibula fracture which was not identified until January 2018.
Associate Professor Shatwell noted that the first PRP injection by Dr Ireland did not improve function and the second made it worse. The claimant noted no further treatment was contemplated.
Associate Professor Shatwell noted that the claimant’s neck pain had increased because the accident aggravated a pre-existing widespread degenerative change in the cervical spine, but that aggravation had ceased.
Associate Professor Shatwell considered that the claimant’s minor soft tissue injuries to the neck, right shoulder and right knee and the fracture of the right fibula would have settled within three months. He did not consider further treatment necessary. Associate Professor Shatwell assessed WPI at 6% relating to the transverse process fractures of L3, L4 and L5.
The insurer disputes the entire treatment claim on the basis that the treatment is not reasonable and necessary treatment for injury causally related to the accident.
Associate Professor Shatwell does not support ongoing treatment.
The insurer submits that this Review Panel would find that the alleged claim for future treatment is not reasonable and necessary nor accident related.
The insurer also disputes that the claimant has or will require any gratuitous or commercial domestic assistance as a result of any injury causally related to the accident.
Further, any care that the claimant provided to his nephew would fall within a s15B claim and would have to separately meet the threshold.
Associate Professor Shatwell opined the claimant required one hour domestic care for heavy household chores, however, Associate Professor Shatwell opined that the need at the time of his report (1 February 2019) is not for the effects of the motor vehicle accident described.
The insurer submitted neurologist Dr Grant Walker’s medicolegal report dated 5 February 2025 as an additional document. The Panel opined that report contained relevant opinion’s that may assist the Panel to resolve the facts in issue.
Dr Walker opined Mr Bungate had a number of significant injuries following the accident. Whilst his GCS was significantly decreased other factors could have caused this as there was never any significant evidence of a traumatic brain injury.
Dr Walker also addressed the claimant’s current major symptoms beingheadaches (which he opined do not relate strictly to the accident and probably relate to the cervical spine), his lower back pain (which relates to the accident), his cervical pain (which is related to the accident together with pre-existing pain and degenerative disease radiologically), and some cognitive issues which are most likely related to his small vessel cerebrovascular disease and age.
Dr Walker opined the accident caused ongoing back, right shoulder and neck pain. He disputed a nexus between the accident and the claimant’s cognitive problems.

Re-examination

Mr Bungate attended the appointment on 6 June 2025 punctually having travelled by train from home near Liverpool to Museum Station. He said he had visited the city two days before to ensure he knew where to come because appointments in unfamiliar places cause him some anxiety. He said that a neighbour helped him locate 1 Oxford Street on a map and once he knew that the building was near the Hyde Park War Memorial he felt more relaxed because he is familiar with and enjoys visiting the latter monument.
The examination took place over 1 hours and 45 minutes.
Mr Bungate is now aged 72 and right-handed. He provided the following history although he reported short-term memory problems affecting his ability to provide answers to some of the questions. He relates his current memory problems to the accident.
Medical Assessor Lahz asked him to do the best he could and she told him that she would understand if there were matters that he could not readily recall.
Mr Bungate was not entirely certain of the purpose of the appointment. He knew that it related to the accident occurring in 2017 and he would be “assessed” although he did not know the specific details i.e., he could not say that it was to assign an impairment number to the head/brain injury, nor did he seem aware of the multiple treatment disputes.
Mr Bungate informed Medical Assessor Lahz that he lived alone in a Department of Housing one bedroom unit at Cartwright where he has lived for 12 years. Prior to that he had been living elsewhere in Cartwright although due to crime in the building (causing a fire), his previous apartment was burned down and he had to move. Before Cartwright, he had been living at Badgery’s Creek on a greyhound property although when the new airport was coming, he (again) had to move.
Mr Bungate is single, never married and has no children. He comes from a small family; there were two sisters now deceased. For many years, he has provided informal care to his nephew who has autism (mostly cleaning, social outings and holidays). The only other relative he has contact with, is a brother-in-law living in Penrith. Mr Bungate told Medical Assessor Lahz that he has few friends because many of them were older and have since died. He said now due to chronic head and neck pain; he mostly stays at home because it is too much trouble to go out.
Mr Bungate has only a year eight education. He can read although his writing is “basic”. He said he was never a good student.
Mr Bungate reported that before the accident he had been in good health. He acknowledged some back and (to lesser extent) neck pain before the 2017 accident, which are detailed in the GP records although he said he remained functional despite these issues. He also recalled a work injury to the left shoulder several years ago (due to a door slamming).
Mr Bungate could not remember exactly when he ceased work and spent quite a bit of time trying to recall various dates and years for specific life events. He eventually decided that he had ceased work at least a couple of years before the 2017 accident and that he had been on the disability support pension for “spinal degeneration”. He could not recall if he were on any painkillers immediately before the accident for that condition.
Mr Bungate’s work history consists mainly of truck driving, warehousing, machinery operation, contract cleaning in addition to 20 years with the Railways (mainly working in stations as a ticket seller.
Mr Bungate said that before he retired, he had been receiving the DSP (disability support pension) and been working just a few hours per week driving a small truck whilst delivering pet food around Sydney.
He said that despite back pain; he had been able to lift and carry heavy meat trays. He had also been able to complete chores, meal preparation and shopping and been driving, often taking his nephew on outings. He had not been receiving any specific assistance/services at home.
Mr Bungate has difficulty spontaneously recalling his medical history. With prompting, he recalled being diagnosed with type 2 diabetes many years ago for which he took medication, name not remembered. With a prompt, he confirmed he was taking Metformin.
Mr Bungate had difficulty naming his current medications which he explained are in a Webster pack. He could list Norgesic 2-3 tablets per day, Panadol 4 tablets per day, Metformin and antihypertensive medications name not remembered, for recently diagnosed hypertension. He said he had tried medicinal cannabis although after taking oil under the tongue, his legs suddenly gave out from beneath him.
Mr Bungate told Medical Assessor Lahz that just two weeks before this examination, Mr Bungate became dizzy and fell, his head striking a wall. He sustained a gash to his head and showed Medical Assessor Lahz a still healing wound on the top of his head, which had been sutured. He told Medical Assessor Lahz that he spent two days in hospital during which period a brain scan was undertaken.
Subsequently, the doctor told him there had been “six small strokes.” Medical Assessor Lahz mentioned to him that at least one small stroke had been demonstrated on a brain scan undertaken after the 2017 accident although he was unaware of this. He did recall mention of a small meningioma detected on a scan after the 2017 accident.
Mr Bungate has never smoked. He said there had been heavy alcohol intake during his 20’s although currently he consumes (on average) a six-pack per month, usually on a weekend. He has never used any recreational drugs.
Mr Bungate has been seeing a new GP (Dr Bligh) at Liverpool for the last 12-18 months. He could not remember the name of the previous doctor at Liverpool Medical Centre whom he consulted shortly after the accident.
Since the accident, Mr Bungate’s main problems have been chronic daily headaches commencing from the neck, then passing upwards over the head to the frontal regions, chronic neck pain, recurrent bouts of dizziness/vertigo, poor memory, recurrent falls, and reduced balance.
Mr Bungate is awaiting commencement of a level 2 My Aged Care package, hopefully in November 2025. In the interim, his neighbours have been assisting him with chores such as laundry, vacuuming and meal preparation. He sold his car not long after the 2017 accident because he could not cope with the stress of driving due to constant headaches and neck pain. He also dislikes using public transport for similar reasons. He reported he spends much of his time nowadays lying in his bedroom with curtains and windows closed due to head and neck pain associated with light and noise sensitivity.
Mr Bungate described his involvement in the 2017 accident. He had lunch at the club in Cabramatta with his nephew and then watched a show. Subsequently, he and his nephew departed the club late (around 11pm, he thought). He recalls standing on the footpath and looking right to check the vehicles (whilst his nephew stayed behind him). A driver waved Mr Bungate across the road, whereupon the car behind that vehicle suddenly pulled out and then collected him. He has no memory of the actual impact nor for any of the events occurring at the scene. He told me his next memory is of waking up in Liverpool hospital, an indeterminate period after the accident.
Medical Assessor Lahz asked Mr Bungate about his alcohol intake immediately before the accident, given that the hospital records refer to him as being “intoxicated.” He said he had consumed beer “no more than usual” although he could not quantify this. He said that he had later checked with the club security whom he said, observed that he had not been “staggering” when he left the club that night.
According to the ambulance report, he had been at the Diggers Club and drinking, when hit by a car at 40 kph. He was groaning with reduced level of consciousness. GCS was 7 at 0159 and 13 at 0215. GCS was later measured at 8. Mr Bungate was lying on the road with abrasions noted at the nose and chin. There were also grazes at the right elbow and right shin.
Medical Assessor Lahz asked Mr Bungate about his recollections of being in hospital. He remembers being asked various questions which he had difficulties answering until he told the Medical Assessor that he then thought to himself; “I better answer them right so I can get out of here.”
He recollects that the police visited him three times in hospital inclusive of the day after the accident. He said that he was informed that his head had struck the vehicle windscreen and he had then offered to replace the windscreen.

He also recalled a “bad nurse” whom he reported, who refused to help him out of a chair. He was unsteady on his feet for several days after the accident and reliant on a walking frame. Also, he stated that the hospital food was “not good.”
Physiotherapy records (hospital) on 24 October 2017 indicate that Mr Bungate was vague and forgetful at times although he was able to follow most instructions. He was described as “unsteady at times.” On 27 October 2017 he was described as alert and oriented to day and date but not time of day.
Mr Bungate could recall there had been rib fractures and said there were already headaches occurring in the hospital.
Further, he remembered there had been pain in both the right shoulder and knee.
Mr Bungate did not recall undergoing any scans or X-rays in the hospital. Lumbar spine scans showed fractures of L3/4/5 transverse processes. There was also a small left pneumothorax associated with rib fractures. An MRI scan of the cervical spine was performed on 23 October 2017 showing a C5-T2 prevertebral haematoma without ligament rupture and with no fractures seen. However, there were multilevel cervical spine degenerative changes. CT brain scan in hospital showed an old lacunar stroke in the right caudate nucleus although there were no acute traumatic findings.
Hospital records confirm significant gait imbalance and also a period of post-traumatic amnesia (PTA) as measured on the Modified Oxford Post- traumatic Scale (MOPTAS) 28 October 2017, six days after the accident. Records indicate fluctuating levels of confusion for several days after the accident, sometimes with slurred speech. At other times, Mr Bungate was reportedly alert and conversational e.g. on 24 October 2017 he could recall his name, date of birth, the current month and year, reason for admission and his age although he thought incorrectly that he had been in hospital for two weeks (when it had actually been two days).
Mr Bungate saw his doctor not long after hospital discharge i.e. 11 days after the accident. Medical records indicate that he consulted the GP on 8 November 2017 with complaints of rib pain, low back pain, grazing of the right elbow and right knee and possible nasal injury. He has persistently complained of nasal obstruction with frequent nose blowing since the accident although from what Medical Assessor Lahz can gather no specific diagnosis has been made.
The GP records on 15 November 2017 refer to right shoulder pain with an ultrasound demonstrating subscapularis tendon tearing and bursitis.
In December 2017, the GP records indicate right knee pain with giving way. An MRI demonstrated an undisplaced right proximal fibular fracture.
MRI right shoulder on 22/1/18 showed bursitis, mild degenerative change of GH (glenohumeral/shoulder) and AC (acromioclavicular) joints and supraspinatus/infraspinatus tendinopathy (wear and tear) and during January 2018, he was referred to Dr Ireland (orthopaedic surgeon) re the right shoulder.
Later, Mr Bungate received a series of (unfortunately unhelpful) steroid injections to the right shoulder (inclusive of one during March 2018 CT-guided), organised by Dr Ireland, who recommended surgery i.e. a “scrape out” of the shoulder, which Mr Bungate declined.
Mr Bungate received assistance from Baptist Care with cleaning after the accident although this only lasted a month, because he disliked having strangers in the house. He also tried Meals on Wheels although he stopped the latter service too because he was not enthused about the meals. He hopes that once he is on the aged care package, he will be able to have Lite and Easy meals which he prefers. Mr Bungate reported that he finds it difficult to gain weight.
Medical records do not refer to headache until April 2018 where there is mention of occipital headache. There is reference to constant headache by May 2018 associated with blurred vision and nausea.
Medical Assessor Lahz put to Mr Bungate that there was no early reference in GP records to either headaches or neck pain although he maintained that the symptoms commenced from the time of the accident. (Of note, the hospital scans did show a cervical spine pre-vertebral haematoma indicating a significant soft tissue injury to the neck due to the accident.)
Mr Bungate also said that whereas before the accident, he used no walking aids, he has relied on a walking stick since the 2017 accident due to poor balance.
Mr Bungate received physiotherapy for a short period after the accident although treatment soon stopped because therapy stirred up neck, head, and shoulder pain.
Mr Bungate consulted Dr Hanna (neurologist) regarding headaches although he said the two to three consultations were unhelpful, not yielding any worthwhile treatment.
Medical records indicate Dr Hanna arranged a brain MRI (June 2018) demonstrating a small right posterior frontal meningioma as well as small vessel disease but again no traumatic findings. An ultrasound of the temporal arteries was done in June 2018 for exclusion of temporal arteritis (latter condition not present).
Throughout 2018 and 2019-20 there are ongoing references in GP records to chronic headache and neck pain as well as right shoulder pain and right knee pain.
Currently, Mr Bungate is not receiving any specific treatment for injuries from the accident. He takes pain medication as well as medication for diabetes and raised blood pressure. He says the head and neck pain is intractable and there is nothing else that can be done, seeing he has consulted quite a few specialists with no one being able to help.
Presently, he continues regular consultations with his GP.
Mr Bungate has not received any recent allied health intervention.
Mr Bungate said that he consulted a physiotherapist regarding dizziness, who wanted to “twist his head, sit him up on the side of the bed, and then turn his body” to get rid of the vertigo. However, due to pain he found the latter manoeuvre impossible.
Mr Bungate is known to My Aged Care. He said that due to poor balance and recurrent falls since the accident, bathroom modifications were undertaken (circa 2024) for bathtub removal in order to install a shower. He said he had to live in a hotel whilst the bathroom was being renovated and this was very difficult when it came to eating. There were only Asian restaurants in the area and he dislikes this kind of food, preferring roasts, and sausages. He lost 6kgs during this period.

Current Symptoms and Function

His head and neck pain is persisting.
There is posterior neck pain often 9/10 intensity, a throbbing ache spreading over the top of the head into the frontal regions. Mr Bungate experiences headache 99% of the time which culminates in visual blurring. As noted, he spends many daytime hours in a dark bedroom lying down to avoid the noise and light, promoting the headache. He said that “one hundred pillows” do not help him. He reported that any stress, being told for example to hurry, worsens the headache whereas taking his time is much easier.
He complains of intermittent spinning sensations lasting “minutes” sometimes associated with nausea. Spinning sensations can develop on lying down, moving too quickly, bending over or else moving from sit-to-stand.
Mr Bungate remains prone to falling due to the combination of poor balance with recurrent bouts of dizziness.
He typically takes small steps and is always apprehensive regarding the prospect of falling.
He is carefully independent with personal care tasks.
Mr Bungate has young neighbours, who as noted have been providing regular meals, and also helping with shopping, vacuuming, heavy chores, and laundry. He said he is fortunately “neat and tidy” and he can also prepare sausages if he must. He enjoys a roast at the local club though given he no longer drives, and the club is a distance from home (too far to walk) he can’t easily get there.
Mr Bungate manages his own finances, which are fortunately, very straightforward. He receives a full Aged Pension and has his bills set up on direct debit. He has no properties or investments and he regularly pays his rent to Department of Housing.
He rarely goes out and struggles to take public transport due to painful exacerbations at the head and neck, due to “bumps on the road.”
Mr Bungate’s memory is poor and he complains of memory “blocks.’ He explained that he has a large table at home on which he spreads reminders and all kinds of paper work to remind him of what he should be doing with respect to bills, daily jobs etc.
The solicitor texted him a reminder regarding this appointment.
Since the accident, Mr Bungate says he has “forgotten” how to record a telephone number in his simple, flip phone.
He does not have a computer and not at all interested in information technology.
He feels since the accident “not as bright as before.” He used to be organised although there is now too much to keep track of, which he has lying on the table. He tries to leave out any important papers in a prominent place.
Mr Bungate must stick to a routine or else he easily becomes confused. Providing he keeps the routine; he generally manages well with the support he receives from his neighbours.
Mr Bungate is wary of scams and does not feel he would be taken advantage of, given he is so cautious and aware of potential for occurrence of the latter.
He can organise household repairs as necessary- for example, he recently had his BSL (blood Glucose) monitoring machine repaired.
Mr Bungate feels grumpy and “on edge” due to constant pain although there have not been any instances of verbal or else physical aggression.
He spends time watching TV, mostly current affairs when not lying down in the daytime.
He does not report any problems with taste, hearing or olfaction and there have been no epileptic seizures.

Examination

On examination, Mr Bungate was clean and neatly dressed (dapper), and cooperative albeit limited by memory issues in providing a complete history.
Height was 169 cm and weight 63 kg. There was mild central adiposity.
On the MoCA[1], Mr Bungate scored 19/30 with deficits in construction (cube copying), memory (delayed recall), abstraction and orientation.
[1] Montreal Cognitive Assessment (MoCA) is a brief screening tool used to assess cognitive impairment, particularly mild cognitive impairment (MCI).
Whilst he could draw a clockface correctly and also correctly complete the trails test, these tasks and others were completed very slowly. There was slowed mentation.
Cranial nerves were normal although olfaction was not formally assessed (no deficits reported).
Gait was narrow based, characterized by short steps and slowness.
Walking on heels and toes was difficult due to poor balance.
Tandem gait was impaired. Romberg’s test was negative and sharpened Romberg not possible due to poor balance/lack of safety.
There was generalised depression of reflexes. There were no frontal release reflexes present. Plantar responses were absent (flat). Proprioception was preserved in both thumbs and toes.
Upper and lower limb power was normal aside from shoulders, which were not formally assessed for strength, due to pain.
There was wasting of both shoulder girdles.
Neck movements were slowly and hesitantly performed, and very restricted < ½ normal range in all directions. There was no tenderness or else muscle spasm/guarding.
Shoulder elevation was bilaterally 2/3 normal range associated with wincing and grimacing, with verbal complaints of neck and shoulder girdle pain during movement. However, shoulder internal/external rotation, adduction and extension were preserved.
Lower back movements were restricted in all planes although these were less irritable than neck movements. There was no focal tenderness, muscle guarding or spasm.
Mr Bungate complained of sudden onset dizziness on arising from lying to sitting. This passed within seconds. A brief check of eye movements did not indicate any nystagmus. A Hallpike manoeuvre (to check for BPPV- benign paroxysmal positional vertigo) was not possible due to severe neck stiffness/soreness.

Conclusions re traumatic brain injury

Medical Assessor Lahz accepted that Mr Bungate has sustained a traumatic brain injury within the severe range given there was a documented PTA duration of six days as well as GCS depression at the scene of the accident.
Medical Assessor Lahz also accepted that the GCS was likely more depressed than would have been the case, had he not been consuming alcohol before the accident. As noted, it was not possible based on the evidence in the provided bundles to quantify the amount of alcohol consumed in the hours immediately preceding the accident.
Hospital records after the accident, indicate confusion for several days associated with gait unsteadiness and (at times) slurred speech.
The situation is somewhat clouded by Mr Bungate’s co-existing cerebrovascular disease. There was at least one small (lacunar) stroke (confirmed on brain scan immediately after the accident) which had occurred pre-accident and been asymptomatic.
It was thought possible that he may have suffered additional strokes since the accident (based on the claimant’s description of “six strokes” on a recent brain scan which he said was told him by a hospital doctor). It is possible that additional small strokes since the accident have contributed to the observed cognitive and balance difficulties at my assessment although it is difficult to quantitate the latter contribution. Also, it was difficult to establish whether the cognitive and physical difficulties since the accident have been static or alternatively progressive.
Mr Bungate is noted to have vascular risk factors including long-standing diabetes and more recently diagnosed hypertension (also likely long-standing).
However, from all accounts, before the subject accident, Mr Bungate had been walking without aids (no balance issues), independent with chores and personal care, driving and assisting his autistic nephew whilst receiving no paid domestic (or other) assistance with ADLs before the 2017 accident. He now relies on neighbours for assistance with meals, chores and shopping, experiences frequent falls, relies on a walking stick and has a poor memory. The available information indicates a deterioration in Mr Bungate’s daily physical and cognitive function after the 2017 accident.
Mr Bungate had a history of neck and low back pain preceding the 2017 accident. This was confirmed by the GP records for which he had been receiving a disability support pension, although based on available information these complaints whilst causing disability for employment were not significantly limiting him with non-work/ordinary daily activities.
The accident represented a high velocity vehicle impact and there were medically verified abnormalities of GCS and post-traumatic amnesia (paragraph 1.164 Guidelines page).
Referring to paragraph 1.166 of the Guidelines, he demonstrates a disturbance of mental status and integrative function assessable via Clinical Dementia Rating (CDR).
Referring to the CDR Table 9 of the Guidelines, there is consistent slight forgetfulness, Memory M=0.5, there is impaired orientation (O) (on MoCA) and difficulty with time relationships O=0.5, he has some difficulty with judgment and solving problems JPS (similarities and differences- NB MoCA abstraction testing) JPS=0.5, there is some impairment in community affairs/social interactions due to cognitive difficulties, Community Affairs CA=0.5, he has difficulty with HH home and hobbies also due to cognitive difficulties HH=0.5 and he is fully capable of personal care PC=0.
According to the instructions in paragraph 1.168 page, overall CDR=0.5 which is class 1 i.e. 1-14% according to Table 6.10 page 116 Guidelines, for which Medical Assessor Lahz deemed 8% WPI within the latter range.
Referring to Table 13, page 148 AMA4 there is also impairment for station and gait due to poor balance limiting mobility, which is independent of the chronic pain he experiences. He can walk although he has difficulty with long distances, grades and stairs and there have been frequent falls. Medical Assessor Lahz deem 7% WPI within the first class i.e. 1-9% WPI.
Following combination of 8% WPI for mental and integrative status with 7% WPI for station and gait, there is 14% WPI due to the accident.

Treatment Disputes

Monthly gp consultations for life expectancy

This is neither related nor reasonable and necessary due to the accident.
Monthly GP consultations for painkillers, investigations and specialist referrals are related to the accident and reasonable and necessary for no longer than six months afterwards.

Pain specialist consultations

An initial series of (up to six) consultations with a pain specialist for headache and neck pain are related to the accident and reasonable and necessary although this is certainly not the case for twice per year nor for the remainder of his life.
The MRI cervical spine very soon after the accident showed a prevertebral haematoma indicating a significant soft tissue injury to the neck. Thus, Medical Assessor Lahz accepts he has ongoing neck pain associated with cervicogenic headaches which have become chronic since this acute injury from the subject accident.
Six consultations with a pain management specialist would establish if there were medications, nerve blocks, cervical spine injections or other treatments such as Botulinum Toxin which could assist with the chronic neck pain and headaches.
Pain management consultations/interventions should only continue if they provide symptomatic relief/functional/QOL benefits to the patient, not ad infinitum.

Neurologist consultations

An initial series of (up to six) consultations with a neurologist for headache are related to the accident and reasonable and necessary for similar reasons as given above for pain management specialist. However, such consultations twice per year and for remainder of his life are neither related nor reasonable and necessary.
Six consultations with a neurologist would establish if there were useful medications or other therapies such as Botulinum Toxin injections which could assist him.
Again, consultations and treatment should be ongoing, only if helpful, not indefinitely in the absence of appraisal of effectiveness/outcome.
Unfortunately, he has so far consulted just one neurologist who was unable to help him.

Orthopaedic specialist consultations

Mr Bungate has consulted an orthopaedic surgeon regarding the right shoulder. Surgery was reportedly recommended although he did not wish to proceed with this.
There is stable right knee pain without any surgical indication. The fibular fracture has long since healed.
He has chronic non-specific spinal (neck) pain for which no surgery is indicated.
Further orthopaedic consultations are neither related nor reasonable and necessary due to the accident, especially for treatment he does not wish to pursue nor which is medically indicated.

Repeat radiological investigations

He has since the accident undergone extensive radiological investigation of the brain, cervical spine, lumbar spine, right shoulder, and right knee.
No further investigations are indicated. Repeat radiological investigations are neither related nor reasonable and necessary due to the accident because they will make no difference to treatment received/clinical outcome.

Analgesia

The claimant may presently be suffering from rebound headache due to regular use of Panadol and Norgesic. In other words, his regular use of these agents could be worsening the chronic pain state.
Given he spends a substantial portion of the day lying down, the benefits of the current analgesia have not been established.
Lifelong analgesia of any description is neither related nor reasonable and necessary due to the accident.
The short-term use of analgesia for 12 weeks post-accident is considered related and reasonable and necessary due to the accident.

Physiotherapy, hydrotherapy, massage

He has received physiotherapy without any benefit.

“Hands on” therapies such as massage and passive treatment measures such as hydrotherapy are not indicated for chronic pain conditions for which more proactive treatment measures encouraging self-management are generally recommended.
Thus, the abovementioned therapies are neither related nor reasonable and necessary due to the accident. At most, physiotherapy is related and reasonable and necessary for no longer than 12 weeks post-accident.

Pain clinic monthly attendances

A referral to a pain management clinic is causally related and reasonable and necessary for comprehensive evaluation of chronic neck pain and cervicogenic headache due to the accident.
However, monthly attendances for the remainder of his life are neither related nor reasonable and necessary.
Ongoing treatment irrespective of type, to be reasonable and necessary must depend on efficacy and benefit to the patient.

Steroid injections and nerve blocks annually

He has received steroid injections to the right shoulder with no benefit. Thus, although the latter are related to the accident injury, they are not considered reasonable and necessary lifelong.
Cervical spine facet blocks/medial branch blocks with steroid/local anaesthetic are related to chronic neck pain and headache from the accident, although (again) for ongoing treatment to be reasonable and necessary, there should be demonstrable effectiveness and benefit to the patient.
It is also unclear as to whether Mr Bungate would consent to the abovementioned invasive interventions.

Future domestic assistance

Due to persistent neck pain and headache as well as poor balance, future domestic assistance is related to, and reasonable and necessary due to the accident. An occupational therapist should determine the reasonable and necessary hours. Presently, as noted, his neighbours are providing him with substantial help.

Past domestic assistance

Due to persistent neck and head pain as well as poor balance, past domestic assistance is related to and reasonable and necessary due to the accident. Again, an occupational therapist should determine the reasonable and necessary hours.

Panel deliberations

The Panel decided to adopt Medical Assessor Lahz’s examination report, the impairment assessment, and its conclusions on impairment and treatment as part of the reasons for its decision.
The Panel considered the principles of causation set out in the Guidelines, in particular at
cl 1 .7, of the Guidelines in particular that the accident does not have to be the sole cause of a condition, but it can be a contributing cause, as long as the impact is not negligible. These clauses are addressed to causation of permanent impairment, but the principles are applicable to treatment disputes too. The accident need only be a material contribution between the accident and permanent impairment or the need for treatment: AAI Limited v Phillips NSWSC 1710.
Briggs No. 2 [2022] NSWSC 372 was discussed in regard to the relevant legal test being on the balance of probabilities and not requiring scientific certainty.
The Panel considered the insurer’s submission and Dr Walker’s opinion.
The Panel discussed the co-existing cerebrovascular disease and how the latter may have contributed to the abovementioned cognitive and physical impairments.
The Panel noted the neighbour’s statement which indicated there was functional deterioration after the 2017 accident.
The Panel considered the Concord Hospital records, that were produced after Medical Assessor Lahz examined the claimant, about the recent admission (2025) mentioned above after Mr Bungate hit his head.
The clinical notes confirmed what Mr Bungate had told Medical Assessor Lahz; that he fell over in the rain and hit his head with the resultant scalp laceration. These notes recorded he experienced greater dizziness and nausea. However, he was able to get himself home after this incident and his neighbours noting that he was unwell, then took him to hospital the next day.
These notes referred to cognitive decline and there is a single reference to “dementia” in the past history, for which he has apparently seen Dr Florence Loh, who the Panel thought may be a neurologist or geriatrician. This doctor’s records or correspondence were not included in the submitted bundles.
The Panel considered a CT brain report from a scan on 23 May 2025:
“No acute intracranial haemorrhage or surface collection.
Old infarct within the right basal ganglia and head of the caudate nucleus.
Periventricular white matter hypodensities are suggestive of chronic microvascular ischaemia.
Ventricles and surface CSF spaces are prominent, which is suggestive of cerebral involution.
No midline shift or mass effect.
The visualised paranasal sinuses and mastoid air cells are normally aerated.
No fracture of the skull vault or skull base.
Right parietal scalp laceration and scalp contusion.”
The Panel noted this report confirmed the presence of the same right caudate/basal ganglia stroke that was seen on the earlier imaging at the time of the subject accident. Thus, there was no evidence on this most recent brain scan of additional strokes occurring since the 2017accident (despite the claimant suggesting to the medical assessor there could have been six strokes on the 2025 brain scan). There is thus no evidence of progressive cerebrovascular disease that could be contributing to the claimant’s current cognitive and physical impairments, which became apparent after the accident prior to which he had been independent and physically fit.
The Panel considered the 2025 hospital records did not change the permanent impairment assessment from the examination, because this information did not indicate the claimant’s condition was actively declining due to dementia caused by cumulative effects from recurrent strokes.

Treatment and care

Mr Bungate must establish that the treatment is related to the accident and both “reasonable and necessary.” This is a more onerous test than the NSW workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary.”
Workers compensation jurisdiction decisions provide some guidance though as when Grove J stated in Clampe.” v WorkCover Authority of NSW:
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”[2]
[2] [2003] NSWCA 52 (Clampett) at [22]-[23], Meagher and Santow JJA agreeing.
The distinction with motor accidents legislation is that it requires two steps of considering whether there is a rationale for the treatment related to injury suffered in the subject accident; then addressing whether it is necessary.
However, key decisions address the criteria of reasonableness in the context of the workers compensation jurisdiction. The late learned Workers Compensation Commission Deputy President Bill Roche listed these relevant considerations in Diab:[3]
“the appropriateness of the particular treatment;
the availability of alternative treatment;
the cost of the treatment;
the actual or potential effectiveness of the treatment, and
the acceptance by medical experts of the treatment as being appropriate or likely to be effective.”
[3] Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Decision makers in the Commission’s Motor Accident Division have applied those paragraphs of Diab as relevant considerations, which assist to establish whether proposed treatment is reasonable and necessary.[4]
[4] See Sarwary v Allianz Australia Insurance Limited [2023] NSWPICMP 125.
The claimant does not provide detailed submissions on causation and whether the proposed treatment and care is reasonable and necessary, other than to rely on Professor Noel Dan’s opinions in his reports dated 4 November 2021 and 3 July 2024.
The insurer relies only on Dr Walker’s opinion.
The Panel considered Medical Assessor Lahz sufficiently addressed the reasons as to causation with the accident, and whether the treatment was reasonable and necessary.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the claimant’s particular circumstances. In Mr Bungate’s case, the unsteady gait, and reduced balance as well as chronic neck pain and daily headaches due to the accident, affecting his ability to perform acts of self-care and household maintenance make domestic assistance reasonable and necessary.
Medical Assessor Lahz also opined that there are sufficient grounds and necessity to investigate pain mitigation arising from the injuries caused by the accident, albeit a reduced ambit from the original claim.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from considering whether treatment “relates to the injury caused by the accident.”
Due to differing causation findings and whether some aspects of treatment are reasonable and necessary, the original Medical Assessment Certificate on treatment and care is revoked, and the Panel will issue a new treatment and care certificate.

Panel’s decision

The Panel found that the accident caused the following injuries :
(a) Severe traumatic brain injury based on GCS of 7/15 and six days of PTA duration
The Panel considered that the following injuries caused permanent impairment above 10%:
· Closed head injury 14%.

Permanent impairment

Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant guides may rate the associated impairment at 0% WPI.
The Panel’s permanent impairment findings about the injuries caused by the accident are different to Senior Medical Assessor Cameron’s assessment dated 28 June 2024.
Accordingly, the Panel will revoke this certificate and issue a new permanent impairment certificate.

Conclusion

The Panel revokes Senior Medical Assessor Cameron’s certificate dated 28 June 2024 and issues a new certificate.
The accident caused the closed head injury – Severe traumatic brain injury with GCS of 7/15 and PTA duration of six days , which is assessed as permanent impairment of 14%, which IS GREATER THAN 10%.
The Panel will also revoke the combined impairment certificate dated 18 June 2024 and issue a new combined impairment certificate.

[2025] NSWPICMP 562

31 July 2025