Chimata v AAI Limited t/as AAMI
[2023] NSWPICMP 407
•22 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Chimata v AAI Limited t/as AAMI [2023] NSWPICMP 407 |
| CLAIMANT: | Sagar Chimata |
INSURER: | AAI Limited t/as AAMI for the Nominal Defendant |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 22 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment dispute by Medical Assessor Shahzad and claimant’s review under section 63; claimant pedestrian, knocked down in Sydney central business district; Insurer referred disputes about past and future domestic assistance, future medication, general practitioner and pain specialist consultations; claimant alleged injuries to his head, neck, lower back, bladder, left and right leg and ankle and both shoulders; issues of consistency raised by the insurer and causation; Held – claimant made no complaint of left ankle, left shoulder, right hip or knee pain; these had resolved and required no further treatment; no ongoing bladder issues and therefore no further treatment; claimant sustained cervical, lumbar spine and right shoulder injuries which were still causing symptoms and required treatment; domestic assistance allowed in part, medication by way of simple analgesics allowed, one GP consultation per year allowed and no pain specialist consultations allowed; general discussion of principles and approach to the resolution of treatment disputes; certificate of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Shahzad dated 17 November 2022. 2. Certifies that in relation to the claimant’s physical injuries caused by the accident on 29 June 2016: (a) there was an injury-related need for assistance with heavy domestic duties from the date of the accident to the date of this Review and that the assistance provided was reasonable and necessary in the circumstances; (b) there is an injury-related need for assistance with heavy domestic duties to be provided from the date of this Review until the claimant turns 60 and this assistance is reasonable and necessary in the circumstances; (c) there is an injury-related need for simple analgesic medication to be provided from the date of the Review for the remainder of the claimant’s life expectancy and that this medication is reasonable and necessary in the circumstances; (d) there is an injury-related need for one general practitioner review per year from the date of this Review until the claimant turns 70 and this review is reasonable and necessary in the circumstances, and (e) while pain consultations may be related to the injuries caused by the accident, any consultation to be provided after the date of this Review is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Sagar Chimata was involved in a motor accident on 29 June 2016. Mr Chimata says he was crossing Pitt Street in Sydney when he was hit by a car.
The claimant says he injured his back and right shoulder in the accident. He says he suffers from headaches and has a significant psychiatric injury.
Mr Chimata has made a claim for damages against AAMI, the third-party insurer of the vehicle he says caused his accident.
A medical dispute has arisen in that claim about treatment and care provided or to be provided to the claimant and AAMI referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 17 November 2022 Medical Assessor Shahzad determined that none of the disputed treatment and care was related to the injuries caused by the accident and therefore none was reasonable and necessary in the circumstances.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 8 March 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 13 March 2023 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Treatment
Mr Chimata’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Section 83 of the MAC Act imposes upon insurers a duty to provide treatment to an injured person, the need for which was caused by the injuries sustained in the accident. The insurer is only under a duty to pay for treatment that is verified and is reasonable and necessary.
In a claim for damages, such as Mr Chimata’s, damages may be awarded for pecuniary or economic losses such as lost wages or loss of earning capacity. Damages may also be awarded for needs created or caused by the injuries sustained in the accident including damages for past and future treatment and care (including gratuitous care) expenses, home modifications and so on.
Once the damages claim is settled or determined, the claim is at an end and the insurer no longer has a duty to provide or pay for treatment. The Panel understands Mr Chimata’s damages claim has not yet been settled or otherwise resolved.
Dispute resolution
Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:
“(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident.”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment (such as Medical Assessor Shahzad’s), further medical assessments and the review of medical assessments by this Panel.[1]
[1] Sections 61, 62 and 63 of the MAC Act.
Certificates of Medical Assessors and Review Panels are, under s 61(2) of the MAC Act, “conclusive evidence as to the matters certified” in the assessment of damages.
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Shahzad examined the claimant on 30 September 2022 and issued his certificate on 17 November 2022.[2]
[2] Proceedings numbered 10422749/21.
He was asked to assess the following treatment disputes – both the causal relationship between the need for treatment (in accordance with s 58(1)(b)) and whether the treatment is reasonable and necessary (in accordance with s 58(1)(a)):
(a) past domestic assistance – that is from the date of the accident to the medical assessment (now Review);
(b) future domestic assistance – that is from the date of the Review for the remainder of the claimant’s life expectancy;
(c) anti-inflammatory and analgesic medication for the future;
(d) General practitioner (GP) reviews up to four times a year in the future, and
(e) pain specialist consultations up to four times a year in the future.
The claimant gave a history of type 2 diabetes controlled by medication (not insulin). He said he has gained weight since the accident (112 to 124kg) but has since reduced his weight to 106kg. He had a heart attack in January 2023 and has had two stents inserted.
The claimant gave a history of being hit by the car and being pulled from underneath the car. He had not seen the car approaching and was “in a state of complete shock and disoriented” but told the driver of the car he was alright and went to a meeting.
The claimant said 45 minutes into the meeting he began to fall off the chair he was sitting on. He reported the matter to the human resources department and was sent home and slept. When he woke up, he had pain all over his body and took Panadeine.
The day after the accident Mr Chimata said he attended Dr Kumar who prescribed Voltaren and told the claimant to report the accident to the police but then Dr Kumar refused to get involved in the compensation matter. As a result, Mr Chimata went to Dr Morsingh who organised radiology which revealed a dislocated right shoulder, torn ligaments and multiple spinal issues. He had physiotherapy.
The claimant was then referred to Dr Maniam, orthopaedic surgeon and had right shoulder surgery. He was seen by Dr Sundaraj, pain management specialist for occipital neuralgia.
Dr Shahzad noted there was a further assessment with Medical Assessor Herald to determine whether further surgery and orthopaedic appointments were related to the accident and reasonable and necessary.
The claimant complained of pain in the back and right shoulder and headaches. In addition, he complains of depression and anxiety.
The claimant had also seen Dr Dowla, neurologist and been prescribed Lexapro and Endep.
Dr Sundaraj had apparently wanted the claimant to try a neural implant.
On examination the claimant was 181cm tall and weighed 111kg.
There was restricted movement on all planes of motion of the neck, the thoracic spine movements were normal but lumbar spine movements were restricted.
The left shoulder was normal whereas the right shoulder was restricted and there was global weakness.
The left leg was normal whereas the right leg had some neurological signs.
Dr Shahzad was satisfied the clamant suffered soft tissue injuries to his neck and back, but he appears to have made no specific finding of any other injuries including an injury to the right shoulder. He found none of the disputed treatment was related to the accident or reasonable and necessary in the circumstances.
ISSUES FOR DETERMINATION
Claimant’s submissions
Review submissions – application for review
The claimant alleges the Medical Assessor has breached the Code of Conduct, the Guidelines and “principles of administrative law”.
The claimant says that the Medical Assessor examined the claimant and published his certificate and that at page 6, paragraph 6 the following appears:
"Farhan: SEE ABOVE. How can one MRI reveal all this ???? Were there multiple investigations?”
As Farhan is the first name of the Medical Assessor, the claimant submitted that the Medical Assessor had “someone else prepare or contribute to the report”.
The claimant says it is obvious that “the certificate was not the examiner’s work” and that he engaged “a third party to write or to materially contribute to the certificate”.
Original submissions – reply to insurer’s application for medical assessment
The claimant noted at [2] that Medical Assessor Cameron’s determination (of physical whole person impairment (WPI)) was the subject of an application for review but that the insurer had not challenged Medical Assessor Friend’s assessment of 19% WPI.
The claimant says at [3] that the insurer’s submissions rely almost exclusively on their own experts’ report which have been paid for by the insurer. The claimant says at [4] these reports were written without all the contemporaneous evidence.
The claimant’s submissions provide at [6]-[20] a description of the events and a summary of the claimant’s treatment.
The claimant then provides a summary of the GIO’s workers compensation file. The claimant submits at [22] that the GIO file establishes two things:
“The first is that there was an investigation and a consideration, on each occasion on which the plaintiff sought medical treatment. The second is that on each occasion treatment was approved, it was approved because it was both reasonable and necessary and arising from the motor vehicle accident.”
The claimant provided a list of the treatment paid for by the workers compensation insurer with notes about the approval process.
The claimant then refers to the claimant’s evidence commencing at [29].
The claimant says at [53] that he was seriously injured in the accident and at [54] that as a result he has “physically [metamorphosed] from a healthy, active and motivated individual into an obese, deconditioned and depressed single male.”
The claimant says at [5] that his pre-accident conditions were reasonably controlled and that his “psychiatric state and disinterest in self-preservation and self-maintenance, inform [Mr Chimata’s] current, poor state and have caused an aggravation of those conditions”.
Insurer’s submissions
Review submissions – response to claimant’s application for review
The insurer did not lodge a formal reply or any submissions in answer to the claimant’s application for review. The insurer advised the Commission, on 19 January 2023, that the insurer neither consented to nor opposed the claimant’s application for review.
Original submissions – application for medical assessment
The insurer’s submissions in support of its original medical assessment application were dated 3 June 2021 and are relied on in this Review.[3]
[3] Page 3 of the insurer’s bundle.
The insurer says at [4]:
“Preliminarily, and by way of context, the insurer notes the following factors relevant to a determination of causation of injury and the claimant’s reasonable requirement for treatment and care.”
The insurer says at [5] the accident “was of minor severity” in that the ambulance did not attend and the claimant was not hospitalised, and his symptoms developed sometime later and that it does not follow treatment could be needed five years afterwards.
The insurer says at [6] the claimant’s unrelated medical conditions include migraines, morbid obesity, poorly controlled diabetes, asthma, hypertension, high cholesterol, gout, possible diabetic peripheral neuropathy and compression of the right lateral cutaneous nerve of the thigh and that these would have given rise to the treatment regardless of the accident. The insurer relies on reports from Dr Walker and Dr Slezak.
The insurer submits at [8] that the claimant’s treatment and care needs must be assessed on the basis of what has been caused by the accident and not the significant other medical conditions.
The insurer challenges at [32] the claimant’s credibility noting:
(a) Dr Machart found inconsistency between the clinical presentation and lack of objective evidence;
(b) Dr Vickery considered complaints and disabilities were excessive in relation to the accident;
(c) Dr Vickery’s most recent report considered the claimant had a somatoform disorder or was malingering;
(d) Dr Sekel found inconsistency when examining the claimant’s cervical spine movement, and
(e) Medical Assessor Cameron found inconsistency in right shoulder movement.
The insurer says at [33]:
“… the insurer impugns the claimant’s credibility and reliability as a historian and seeks for the Medical Assessor to only accept subjective complaints of disability in circumstances where they are substantiated by objective evidence.”
The insurer disputed each and every treatment claimed by Mr Chimata and reserved the right to add to the list of treatments upon receipt of the workers compensation list of treatment provided.
Further submissions
The insurer provided further submissions dated 2 December 2021[4] upon receipt of the list of workers compensation payments for treatment and sought to add to the list of disputed treatments the following modalities of treatment from the insurer’s list of payments:
(a) the “scrambler therapy”;
(b) the artificial aids and home purchases;
(c) other therapies;
(d) radiology;
(e) travel, and
(f) dietician expenses.
[4] Page 372 of AD8 in the insurer’s bundle.
The Panel does not have a copy of any correspondence from the Commission concerning the above treatment modalities however as they were not assessed by Medical Assessor Shahzad, they are not the subject of this Review and will not be considered by the Panel.
Procedural matters
The Panel met on 19 June 2023 and issued a report to the parties on 19 June 2023.
The Panel advised it will be conducting an assessment de novo of the matters assessed by Medical Assessor Shahzad, that is, whether the following treatment relates to the claimant’s physical injuries caused by the accident:
(a) past and future domestic assistance;
(b) anti-inflammatory and analgesic medication for the future;
(c) GP reviews up to four times a year in the future, and
(d) pain specialist consultations up to four times a year in the future.
The Panel noted there was a dispute about the amount of treatment and care that is reasonable and necessary provided (past) and to be provided (future).
The Panel queried the status of the matter noting a comment in Medical Assessor Shahzad’s reasons that the claim had settled.
On 30 June 2023 the claimant provided a response to the Panel’s report and directions advising that:
(a) the claimant agreed with the Panel’s summary of the medical assessments;
(b) the claimant agrees with the Panel’s summary of the disputes, and
(c) the third-party insurer has repaid the workers compensation insurer and as the workers compensation has insurer is a competent entity and has assessed and paid for the claimant’s treatment which the insurer has refunded “it seems contradictory that the CTP insurer now seeks to dispute the reasonableness and necessity of the treatment in the circumstances.”
On 21 July 2023 the insurer provided a response to the Panel’s report and directions advising that:
(a) the insurer agreed with the summary of the medical assessments undertaken to date;
(b) the dispute concerns the reasonableness and necessity of all the treatment modalities;
(c) the damages claim has not yet resolved, and
(d) the workers compensation insurer’s recovery proceedings against the third-party insurer had resolved for the sum of approximately $600,000 but that the insurer did not admit liability for the claim or for the treatment paid for by the workers compensation insurer.
BACKGROUND – OTHER ASSESSMENTS
Physical assessments
Mr Chimata was assessed by Medical Assessor Cameron on 8 March 2021. Some of the clinical findings in his determination include:
(a) the claimant weighted 114kg and was 180cm in height;
(b) the range of motion in the neck was symmetrically reduced and there were no non-verifiable radicular signs or signs of radiculopathy;
(c) left shoulder motion was full and right shoulder motion was reduced but there was inconsistently which the claimant said was due to pain;
(d) the thoracic spine was reduced symmetrically with no spasm, guarding or non-verifiable radicular complaints, and
(e) the lumbar spine had marked reduction in motion with no muscle spasm, guarding or dysmetria and no non-verifiable radicular symptoms. There was no neurological abnormality in the lower limbs.
Medical Assessor Cameron assessed 0% WPI for the injury to the cervical spine, lumbar spine and left shoulder and 3% WPI for the right shoulder.
Mr Chimata lodged an application for review and on 4 November 2022, a Review Panel determined the claimant’s physical injuries attracted a whole person impairment that was not greater than 10%. Their determination includes:
(a) both Medical Assessors Assem and Berry conducted the re-examination;
(b) the claimant’s current symptoms included intermittent neck and lower back discomfort worse with sitting, no radiation in the upper limbs but some radiation to the right buttock and upper thigh. His right shoulder had no pain but a feeling of numbness after being at the computer, his left shoulder was fine. His right ankle was uncomfortable after walking but he had no left ankle pain;
(c) there were pain behaviours demonstrated;
(d) the claimant was 180cm tall and weighed 111kg;
(e) there was no muscle guarding or spasm in the neck and symmetrical loss of movement and no neurological signs in the upper limbs;
(f) there was no muscle guarding or spasm in the lower back and no neurological signs conforming to a specific dermatome in the lower limbs;
(g) the left shoulder range of motion was normal and the right shoulder was variable and reduced in almost all movements;
(h) there were pain behaviours and the limitations of movement disproportionate to the underlying pathology, and
(i) the Panel determined a diagnostic related estimate (DRE) category I for the neck and the back injuries (0% each). The Panel could not use the range of motion method because of the inconsistency in movement and allowed 4% WPI for the right shoulder injury.
On 22 February 2023 Medical Assessor Herald determined that the claimant’s right shoulder surgery was related to the accident and was reasonable and necessary in the circumstances. The Panel is not aware of any application for review lodged in respect of that decision.
Some of the features of his reasons include:
(a) the claimant was measured as 182cm tall and 111kg in weight;
(b) Mr Chimata had a 50% reduction in cervical spine motion and a positive Spurling’s test in the right upper limb which he found consistent with non-verifiable radicular symptoms but not radiculopathy;
(c) asymmetrical loss of motion in the lumbar spine, a positive Trendelenburg sign on the right and positive 60 degrees straight leg raise on the right but no radiculopathy;
(d) restricted right shoulder motion but 5 out of 5 power in the right rotator muscles, and
(e) there was no evidence of exaggeration but there were features of pain hypersensitivity.
The arthroscopic right shoulder repair was found to be related to the accident because Mr Chimata had a fracture / dislocation seen in radiological imaging taken soon after the accident. Medical Assessor Herald indicated some specialists would have argued against the surgery and that surgery would only usually be considered after conservative measures had failed but he found that the surgery in this case was reasonable and necessary.
Medical Assessor Herald considered any further referrals to an orthopaedic surgeon unnecessary because the surgery has stabilised the condition and 0-4 consultations a year were not reasonable and necessary.
Psychiatric assessments
On 17 March 2021 Medical Assessor Friend, psychiatrist determined the claimant’s WPI as a result of the injuries caused by the accident was greater than 10%. The Panel understands that this decision is not under review.
On 17 July 2022 Medical Assessor Hong, psychiatrist allowed some domestic assistance, medication and GP consultations as a result of the psychiatric injuries sustained by the accident and found they were reasonable and necessary. The Panel understands this decision is under review.
REVIEW OF THE EVIDENCE
General comments
The claimant lodged an indexed and paginated bundle of documents comprising over 625 pages.[5]
[5] This document will be referred to as AD6 in these reasons.
The insurer had initially provided a bundle of documents comprising 4,765 pages. The Panel in its report of 19 June 2023 noted that there were documents in that bundle already lodged by the claimant and 3,000 pages from the workers compensation file. Many of the pages from the workers compensation file related to correspondence with no apparent relevance to the matters in issue in the proceedings. The insurer was asked to resubmit their bundle with documents not provided by the claimant and documents strictly relevant to the matters in dispute.
In compliance with those directions, the insurer lodged an indexed and paginated bundle of document with only 1,258 pages.[6]
[6] This document will be referred to as “the insurer’s bundle” in these reasons.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[7] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[7] [2022] NSWSC 1079.
The Panel notes the considerable volume of material before it. While the Panel has considered it all, the Panel will not attempt to summarise each and every document only those that are of significance to the issues in dispute.
Claim documents[8]
[8] Neither party appears to have provided a copy of the motor accidents claim form.
The claimant lodged a claim form with the State Insurance Regulatory Authority (SIRA) which is the Nominal Defendant. The claim form was signed as true and correct and dated 21 October 2016.
The claimant denied making any previous compensation claims. In the description of the accident given by the claimant Mr Chimata says he was “run over” by a reversing motor vehicle in a one-way street.
Mr Chimata lists his injuries as head, shoulder (both), left ankle, right leg and ankle, bladder, back and neck as well as depression.
He denied any previous injuries or illnesses or health issues which might affect his recovery.
The medical certificate signed by Dr Morsingh says the claimant has been a patient since 2007. He diagnosed a cervical disc prolapse, lumbar disc prolapse, right shoulder Hill-Sachs lesion, left shoulder tendinopathy and bilateral ankle injuries.
There is no police report, ambulance record or any statement from the driver of the at-fault vehicle. The Panel has been provided with closed circuit television (CCTV) footage from a building near where the accident occurred.
Statements
Mr Chimata provided a statement dated 25 June 2021[9] setting out many of the matters relevant to his circumstances before the accident including his work history, his marriage and relationship with Swati. The claimant has also provided photographs of himself before the accident and after the accident.
[9] Page 549 of AD6.
Mr Chimata said he usually worked from home and that but for the accident he would have been a director in the organisation where he works.
The claimant says he and Swati had a “passionate, involved and vibrant relationship” before the accident and that they started investing together in multiple businesses and coaching relating to businesses and they had gone on a trip to New Zealand before the planned launch of their business in July and August 2016.
The claimant described the accident and notes his office called a taxi and he went home after becoming sick following the accident.
Mr Chimata provides great detail about his injuries, disabilities and the treatment he has had. He says he has had regular domestic and gardening assistance as well as physical therapies and psychological counselling.
The claimant’s former wife provided a statement dated 15 June 2021[10] saying that the accident has changed the claimant and that before the accident he was a doting father who cared for his son and that after the accident the claimant’s time with his son has been reduced. She says her former husband’s physical and mental condition has diminished.
[10] Page 572 of AD6.
The claimant’s current partner provided a statement dated 25 June 2021.[11] She had known the claimant since 2007 and had observed that he was a great husband and father, picking his son up after school and returning him to his mother’s home at 9.00pm. On the weekends she said he was busy around the house cleaning, gardening, washing and cooking and taking his son to sport. She says their relationship commenced in 2014 when they started some business together but that they kept it secret from family and friends until the businesses “had taken off”.
[11] Page 564 of AD6.
She says since the day of the accident he has had “whole body in severe pain” with “debilitating headache and vomiting”. She says she was providing full time care to him and drove him to all appointments until June 2017. She says she still has to take time off work to take Mr Chimata to appointments.
She said as a result of the time she was spending between their homes and looking after him she decided to move in with him without being married which was against her cultural norms and the wishes of her parents. As a result, she says she has had suicidal thoughts. She sees herself as his carer and not his partner. She says she spends 20-25 hours a week on household chores for him.
Treating medical records and reports
Pre-accident records and Dr Kumar
The claimant saw Dr Padma Kumar and others at the Joyce Street Medical Centre. Before the accident the claimant had been treated there (from 2012) for asthma, diabetes, weight loss and “migraine with aura.” Mr Chimata had two admissions to hospital in 2015, one for migraine and another for “gouty arthritis.” There are no pre-accident musculoskeletal issues revealed in the notes of Dr Kumar.
Dr Dowla, neurologist saw the claimant on 26 March 2015 at the request of Dr Kumar.[12] The claimant had a 10-year history of headaches associated with nausea, vomiting and photophobia. The claimant was advised to take Inderal and return in three months.
[12] Page 584 insurer’s bundle.
After the accident, Mr Chimata saw Dr Kumar on 30 June 2016. The claimant said he was hit on the right side of his body falling to his left side and injuring his left ankle, right shoulder, right chest wall, right hip and knee. There were no abrasions. Hip and knee movements were said to be normal but there was pain and restricted right shoulder abduction and internal rotation. Mr Chimata complained of pain in the right side of his chest and in his left ankle. No swelling was observed, and all movements were normal.
Dr Kumar records a visit on 1 July 2016 noting “no serious injuries” and a sick leave certificate was given. On 5 July 2016 the claimant attended “experiencing severe low back and right shoulder pain”. On 11 July 2016 the claimant had developed pain in both calves.
On 12 July 2016, Dr Kumar discussed the MRI results with the claimant and recorded “has no bowel or bladder symptoms” and the pain in the calves had improved and the claimant was “able to walk around comfortably.”
On 15 July 2016, the claimant reported severe pains all over his body and he was having headaches and urinary frequency but not painful urination. There was generalised tenderness over the spine, but reflexes were normal, calves were normal, feet and shoulders were said to be clinically normal.
The claimant returned on 19 July 2016 to ask for a medical certificate and to advise Dr Kumar he was now seeing Dr Morsingh.
Dr Kumar has recorded the claimant’s weight as follows:
(a) 122.9kg 10 October 2012;
(b) 125.5kg 29 December 2012;
(c) 115.9kg 20 May 2013;
(d) 119.1kg 27 February 2014;
(e) 124.8kg 30 June 2014;
(f) 120.4kg 16 March 2015;
(g) 120.2kg 12 August 2015;
(h) 115.8kg 17 September 2015, and
(i) 123.3kg 1 July 2016.
GP Dr Morsingh
Dr Morsingh first saw the claimant on 16 July 2016, according to his notes.[13] Dr Morsingh records that the claimant “presented after being hit by a reversing car, 2 weeks” has “video evidence on his phone” and that the claimant was on work duties and was taking Voltarent (50mg). He also records that the claimant had “put on 3.5 kgs in 2 weeks not being able to move much”. Mr Chimata complained of back pain only “due to his injury”. The note then indicated the claimant was to return on Monday for review. The records also indicate that on this date the claimant’s height and weight were recorded ad his body mass index calculated at 36.5 which was “grossly obese”. Medical certificates were issued on this day and an ultrasound of the shoulder and upper arm were requested. While the date of the accident appears in the records it is clear the claimant did not attend on that date.
[13] Page 249 of the insurer’s final bundle.
On 18 July 2016 the claimant returned to Dr Morsingh with a list of injuries including the back (with sciatica to the feet), bilateral ankle sprains, right and left shoulder injuries, groin injury, bladder dysfunction, neck pain and headaches. The claimant was referred to Dr Maniam and prescribed Voltaren Rapid 50mg.
Dr Morsingh wrote a letter for the claimant’s solicitor dated 20 June 2021[14] stating that he first saw the claimant on 18 July 2016. The Panel notes this may be incorrect as his notes suggest the claimant attended on 16 July 2016.
[14] Page 510 AD6
Dr Morsingh said that blood tests dated 12 March 2016 record a haemoglobin level of 5.6%, total cholesterol of 4.3 and a creatine level of 80 suggesting Mr Chimata had good control of his diabetes, high cholesterol and high blood pressure before the accident. Dr Morsingh had a history of the accident including the claimant being hit heavily, flung to the ground and trapped under the car.
He has a record of the claimant complaining of severe lower back pain with sciatica running into both legs all the way to the feet and severe pain in the right shoulder, neck pain, left shoulder pain, groin pain with bladder dysfunction and severe headaches.
He refers to an MRI of the lumbar spine dated 12 July 2016 showing acute annular tears at L3/4, L4/5 and L5/S1 causing radicular pain, bladder dysfunction and paraesthesia in both limbs.
Dr Morsingh also refers to MRIs of both shoulders on 1 August 2016 and the Hills-Sachs fracture and tears of the labrum and subscapularis which he says required surgical repair.
Dr Morsingh said he referred the claimant to Dr Maniam who undertook the right shoulder repairs arthroscopically.
Dr Morsingh noted that the claimant had a congenital narrowing of the lumbar spinal canal which increased the risk of injury due to trauma and subsequent damage but said that but for the accident, the claimant would not have had problems with his lumbar spine.
He diagnosed the annular tears were causing radiculopathy and a cauda equina syndrome, whiplash, chronic pain syndrome, chronic migraines, right shoulder anterior dislocation and soft tissue injuries (including tears), left shoulder soft tissue injuries including impingement and tear. He also diagnosed a number of psychiatric conditions and an aggravation of the claimant’s obesity, diabetes, hypertension and high cholesterol.
He noted the claimant was working seven hours a day, three days a week and had only been able to do that with the treatment he has received. He expressed the opinion:
(a) the claimant required pain management consultations quarterly;
(b) 8-12 scrambler sessions annually;
(c) physiotherapy monthly;
(d) fortnightly psychology;
(e) pain medications, and a
(f) a neurostimulator.
He says his role is, “to assess the reasonable clinical needs of my patient … and negotiate the most suitable pathway forwards for my patient using the best evidenced based therapies that are available.”
Dr Morsingh says the claimant requires ongoing pain management, clinical psychology, CT guided cervical facet joint injections, physiotherapy and increased exercise with dietary advice and management as his glycaemic control has been affected due to weight gain, loss of mobility and function due to the accident.
Dr Morsingh then provides a critique on Dr Vickery’s report and says he has read the reports of the claimant’s WPI assessments and says, “the ranges of the WPI are consistent and reflect the true nature of Mr Chimata’s physical injuries”. He does not agree with Dr Machart’s opinions.
He notes that the medical costs incurred to date are $200,000 and says that all these treatments are reasonable and necessary.
Dr Morsingh also expresses the view that the claimant’s weight gain, increase in obesity and resultant impact on his health is due to the car accident due to his inability to mobilise without pain and the psychological effects of the accident.
In a supplementary report dated 25 June 2021[15] Dr Morsingh notes the recent bone scan suggests a minor rotator cuff injury in the right shoulder which he relates to the accident. Dr Maniam has a record of the claimant seeing Dr Morsingh the day after the accident.
[15] Page 518 of AD6.
Specialists
Dr Maniam wrote to QBE (the workers compensation insurer) on 5 August 2016.[16] He has a history of the claimant being hit on the side and falling onto the road and experiencing dizziness immediately.
[16] Dr Maniam’s four letters were provided separately and are not in the bundles.
Dr Maniam had seen the claimant on 21 July 2016 at which stage the claimant complained of neck pain, lumbar spine pain with urinary dysfunction, bilateral shoulder pains and left ankle pain. On examination there was restricted movement in the neck, lower back and shoulders. There were no neurological signs in the upper or lower limbs and therefore no suggestion of radiculopathy.
Dr Maniam diagnosed degenerative disease in the cervical spine, a disc protrusion at L3/4 and a L4/5 broad based disc bulge causing severe stenosis and compressing the cauda equina nerves. He also diagnosed instability in the right shoulder and the Hills-Sachs fracture and tears in the labrum and subscapularis. There was osteoarthrosis of the left shoulder with a tear in the subscapularis.
Dr Maniam advised surgery, analgesia and physiotherapy.
In a second letter dated 22 September 2016, Dr Maniam outlined the treatment necessary after the surgery and advised that a “near full recovery to be made in six months.” He expected the disc protrusion to settle with conservative measures.
In a third letter written after the surgery he confirmed that the arthroscopic findings were a tear of the anteroinferior labrum and a Hill Sachs lesion in the posterosuperior humeral head. He notes that the “bump” created at the edge of the labrum was “impressive.”
In a fourth letter dated 2 December 2016 he restates much of what had been said in his first letter and noted the claimant was making a steady recovery and having physiotherapy.
There are no further letters and it does not appear that either party has obtained a set of records from Dr Maniam.
Dr Bokor was asked to provide a second opinion on the claimant’s shoulder. He wrote to Dr Morsingh on 14 September 2016.[17] He referred to “diffuse right shoulder and neck pains” with mild decreased neck movements and guarded activity and movement of his shoulder. The claimant was wearing a sling and when it was removed the claimant was able to achieve 140 degrees of elevation on the right and 160 degrees on the left.
[17] Page 567 of the insurer’s bundle.
He reviewed the MRIs and advised physiotherapy but no urgent intervention.
Dr Dowla wrote a letter to Dr Morsingh on 5 September 2016 after the accident. Nerve conduction studies were normal. He reviewed the radiology and advised there was significant pathology requiring surgery but otherwise gave no advice in relation the any neurological matters. In a second report dated 23 September 2016 he records lower back pain radiating to both buttocks and the right thigh. Nerve conduction studies were again normal and he advised Mr Chimata to have physiotherapy.
The claimant saw Dr Dowla a further three times with no significant improvement. Mr Chimata reported to Dr Dowla on the last occasion (16 August 2017) that the claimant was advised to have a steroid injection for his occipital neuralgia and an epidural block for his lower back pain.
Dr Sundaraj, pain specialist provided a report dated 17 August 2018[18] as to the degree of the claimant’s WPI in accordance with the workers compensation legislation. He found a combined total of 21% made up of:
(a) lumbar spine DRE category II (6%);
(b) cervical spine DRE category II (6%);
(c) right shoulder – 8%, and
(d) severe chronic pain – 2%.
[18] Page 530 of AD6.
Dr Sundaraj wrote a report to the claimant’s solicitor dated 23 June 2021.[19] He was sent copies of the expert reports in the matter and the assessment of Medical Assessor Friend (but not Medical Assessor Cameron). He says, “the motor vehicle accident … has been the causal reason for the entire sequel of events that have taken place to date.”
[19] Page 526 of AD6.
He addresses the insurer’s submissions that the accident was minor because the police and ambulance did not attend, and the claimant was not taken to hospital.
Dr Sundaraj then provides a list of treatment and events as follows:
(a) he assessed the claimant, adjusted his medication and noted Mr Chimata had “invasive interventional procedures” to address his significant pain and suffering in the head, neck and lower back;
(b) he has received financial assistance by the workers compensation insurer paying for all his treatment;
(c) patients with severe ongoing chronic pain will often have “multiple pain generators” around which they develop emotional factors which present as psychological symptoms. Psychosocial factors contribute as well such as loss of pre-injury duties, financial hardship, relationship issues and so on which progress to a “biopsychosocial complex”. He says “to declare this as ‘somatoform disorder’ is unfair and detrimental”;
(d) the claimant has required treatment to address his various pain generators to maximise benefits including physiotherapy, exercise physiology and psychology. Dr Sundaraj has taken the ‘big picture’ perspective of the whole of the claimant’s treatment process, and
(e) the claimant has been able to return to modified employment to contain his severe symptoms but “will always continue to be troubled with pain and difficulties from here onwards for a number of years ahead.”
Professor Boyages, endocrinologist wrote to Dr Morsingh on 24 February 2022 concerning the claimant’s diabetes after the claimant’s January heart attack.[20] He notes the claimant had reduced his weight by 4kg since the cardiac event and that at his peak the claimant weighed 124kg, is currently at 111kg and his ideal weight should be close to 74kg. Professor Boyages explained the nature of the disease to the claimant and his predisposition to diabetes and that he needed to reduce his weight. He gave him dietary advice and adjusted his medication and set him a goal of reducing his weight by a further 4kg in 10 weeks.
[20] Page 915 of the insurer’s final bundle.
On 5 May 2022 the claimant had reduced his weight to 108.5kg and his blood results were improved. The claimant was complaining of peripheral neuropathy and erectile dysfunction and medication was prescribed. The Professor requested the claimant continue to lose weight at the rate of one kilo a month or more.
The reports of Professor Boyages deal exclusively with diet modification and make no recommendations in respect of exercise.
Radiology
Mr Chimata had an X-ray and ultrasound of his right shoulder on 30 June 2016 at the request of Dr Kumar. This revealed mild acromioclavicular joint osteoarthrosis and mild cuff tendinosis only.
On 12 July 2016 Dr Kumar arranged for an MRI[21] of the claimant’s lumbar spine with a history of “bilateral calf pain. Pedestrian hit by reversing car 2 weeks ago.” The conclusion of the study was:
(a) tiny posterior annular tear at L5/S1;
(b) mild broad based disc bulge at L4/5 with posterior annular tear and postero-central disc protrusion. Congenitally narrowed canal and compression of cauda equina nerve roots, and
(c) tiny annular tear and disc protrusion at L3/4.
[21] The report is at page 627 of the claimant’s bundle.
The claimant had further MRIs on 1 August 2016[22] at the request of Dr Morsingh which showed:
(a) cervical spine – minimal disc desiccation and no significant posterior disc disease and no significant canal or neural exit foraminal compromise;
(b) right shoulder – previous anterior instability on the right with a subacute fracture in keeping with Hill-Sachs fracture and a tear of the anterior labrum and degenerative changes, and
(c) left shoulder – mild osteoarthritis of the acromioclavicular joint, appearance of previous capsulitis and a low-grade tear in the subscapularis.
[22] The report is dated 2 August 2016 and is at page 625 of AD6.
An EMG nerve conduction study dated 23 September 2016 was done at the request of Dr Dowla. There was no evidence of focal or generalised neuropathy in the lower limbs.
A whole-body bone scan dated 18 November 2016 showed no focal abnormality within either foot.
A bone scan of 23 June 2021[23] was undertaken due to “widespread aches and pains following a motor vehicle accident in June 2016”. The result was that in the early phase of the study, head, neck, thorax, shoulders, hands and feet were unremarkable but that on delayed studies there was mild rotator cuff injury and minor degenerative changes in the sternoclavicular and right acromioclavicular joints.
Claimant’s medico-legal reports
[23] Page 519 of AD6.
Physical injuries
The claimant relies on a “rehabilitation summary report” from Ms Gurie dated 25 June 2021.[24] Ms Gurie had not examined the claimant but has read the medical evidence and relies on information obtained by her colleagues including Mr Wee an exercise physiologist. Her report offers an opinion that the treatment provided by the workers compensation insurer has been reasonable and necessary and caused by the accident.
[24] Page 544 of AD6.
Dr Stephenson, orthopaedic surgeon provided a report to the claimant’s solicitor after an examination on 11 April 2019.[25]
[25] The report dated 30 April 2019 is at page 89 of AD6.
The claimant complained of lower back pain into the back of the right thigh and pain in the left thigh. There was neck pain radiating to the back of the head and right shoulder main will less left shoulder pain and reduced range of motion.
The claimant weighed 128kg and was measured at 5’11” (180cm).
On examination of the neck there were no signs of radiculopathy but an asymmetrical loss of motion equating to a 5% WPI. In the lumbar spine there were no signs of radiculopathy, straight leg raising was to 90 degrees on both sides but asymmetrical range of motion again giving rise to a 5% WPI.
The shoulders were examined with both being restricted and WPI assessed at 4% for the right and 2% for the left. He considered the claimant fit for work, that “conservative management only with occasional GP review was necessary.” Dr Stephenson offered a guarded prognosis but thought some symptoms would persist.
Psychiatric injury
While the claimant was referred to and obtained treatment from Mr Ada, psychologist, he has written a letter to the claimant’s solicitor dated 24 June 2021.[26] He confirms the claimant was referred to him in March 2017. He was provided with reports from Doctors Parmegiani, Reutens, Stephenson, Walker, Slezak, Sekel, Machart, Vickery and the medical certificates of Medical Assessors Friend and Cameron.
[26] Page 520 of AD6. The reports are dated 2 August 2016.
Mr Ada says the opinions of Dr Vickery are “inconsistent” with his findings from his treatment of the claimant. He documents the claimant’s history, the history of the car accident and the history of treatment provided since the accident.
Mr Ada says the claimant was unfit to work after the accident until April 2017 and had to be cared for by his partner who was living separately “in accordance with their cultural and family beliefs”. Her moving in has caused criticism from their families.
Mr Ada gives a list of the claimant’s symptoms and reports on the Depression, Anxiety and Stress Scale (DASS-21) results suggesting the claimant was extremely severely depresses, extremely severely anxious and severely stressed.
Mr Ada says the claimant has improved but without treatment could not work 21 hours a week. He diagnoses an adjustment disorder and post-traumatic stress disorder and says the claimant requires weekly to fortnightly consultations.
Dr Julian Parmegiani on 7 February 2019[27] reported that at the time of the accident the claimant was working full time with custody of his son half the time. Mr Chimata had no past history of mental illness or a criminal record. He noted pre accident diagnoses of high blood pressure and diabetes and high cholesterol developing after the accident.
[27] Page 582 of AD6.
Dr Parmegiani considered the claimant had a chronic post-traumatic stress disorder with a secondary Major Depressive Disorder with panic attacks.
He assessed the claimant’s WPI at 20%.
Dr Parmegiani provided two supplementary reports[28] commenting on the reports of other examiners and Medical Assessor Friend’s assessment of WPI.
[28] Page 575 of AD6.
Dr Mukesh Kumar provided a report dated 10 June 2022 to the claimant’s solicitor.[29] He had seen the CCTV footage and noted the claimant’s current treatment of medication and psychological counselling with Mr Ada weekly or fortnightly.
[29] Page 99 of AD6.
Dr Kumar has a history of “multiple injuries” including to the neck and the lower back, a dislocation of his right shoulder, ligament tears, groin injuries. The claimant said he had “occipital neuralgia from hitting his head and had multiple surgeries”.
The claimant complained of depression, a loss of intimacy, disturbed sleep with frequent and intrusive nightmares, flashbacks, panic attacks.
The claimant reported finding it hard to look after himself, he no longer cooks meals and misses meals. His partner cares for him and he is unable to live independently.
Dr Kumar examined the claimant by zoom and diagnosed him with post-traumatic stress disorder and a major depressive disorder.
Dr Kumar recommended the claimant consult with a psychiatrist and his medication should be reviewed as well as continuing his therapy with Mr Ada. Dr Kumar did not agree with Dr Vickery’s assessment and agreed with Dr Parmegiani. He assessed WPI at 23%.
Insurer’s medical legal reports
Physical injuries
Dr Walker, neurologist provided a report to the insurer[30] dated 30 June 2020. He refers to the claimant’s lumbar injury and radiology and the right shoulder injury and fracture, He notes Dr Maniam recommended surgery and then Dr Bokor did not, and that Dr Maniam performed the surgery. He noted the claimant had seen Dr Dowla, neurologist who performed nerve conduction studies of the right arm and then the legs but found no abnormalities.
[30] Page 34 of the insurer’s bundle.
Dr Walker notes the treatment with Dr Ada, psychologist and gives great detail of the pain management therapy provided by Dr Sundaraj.
The claimant’s complaints of neck pain, right shoulder pain and restriction and lower back pain radiating into the thighs were consistent with other reports.
He assessed impairment at DRE category II (5%) in the neck and DRE I in the lower back (0%).
He noted the claimant’s pre-accident problems and thought there was no accident involvement. He considered there was no “structural reasons” for the claimant’s ongoing pain and level of symptoms.
He related the neck, back and shoulder pain as related to the accident and said there was no need for any further treatment other than simple analgesics. He did not think there was a need for ongoing domestic assistance.
He diagnosed soft tissue injuries with no neurological sequelae. Dr Walker thought his pain will worsen as Mr Chimata aged along with his other medical problems and not because of the accident.
Dr Walker provided a further report to the insurer dated 7 December 2021[31] having reviewed additional documentation. He was of the view the claimant had injured his shoulder, his neck and his lower back and that a lot of the information about disability concerned subjective information from the claimant and his partner.
[31] Page 672 of the insurer’s bundle.
Dr Slezak provided a report to the insurer dated 20 August 2020.[32]
[32] Page 40 of the insurer’s bundle.
He has a history of the claimant weighing 110kg before the accident and 125kg on 29 June 2020. He also notes a 2011 diagnosis of diabetes with poor compliance with medication. He had elevated haemoglobin levels in September 2019 (9.6% where normal is less than 6%) and high creatinine levels in August 2019.
Dr Slezak provided an opinion on the claimant’s life expectancy in the light of the claimant’s diabetes, obesity, coronary artery disease and other conditions.
Dr Sekel has provided a report dated 24 April 2020 to the insurer.[33] He refers to the claimant having two GPs, Dr Morsingh from 2003 to 2013, Dr Kumar from 2012 to 20-16 and Dr Morsingh from 2016 onwards. From these records he has ascertained the following pre-accident history:
[33] Page 43 of the insurer’s bundle.
(a) recurrent severe migraines requiring medication and investigation;
(b) the claimant was referred to Dr Dowla before the accident for “severe disabling migraine”;
(c) morbid obesity weighing 117 to 126kg;
(d) peptic symptoms;
(e) type 2 diabetes;
(f) asthma;
(g) poorly controlled hypertension;
(h) high cholesterol, and
(i) gout.
Dr Sekel has a consistent history of the accident and the claimant’s treatment. The claimant said he had no pain until seven hours after the accident and then he developed in the whole of his right upper limb, headaches, lower back, groin and both ankles.
When examined the claimant weighed 119kg and was measured at 178cm.
Mr Chimata’s neck was examined and there was no spasm or guarding, some symmetrical loss of motion which was inconsistent. There were other inconsistencies recorded and no wasting of the neck muscles evidence. Left shoulder motion was normal and the right shoulder was restricted. There was a symmetrical loss of motion in the thoracic and lumbosacral area but no spasm or guarding and no deformity visible. The ankles were normal.
He assessed both the neck and lower back at DRE I (0%) and 3% for the loss of shoulder motion.
Dr Sekel provided a supplementary report dated 6 August 2020[34] commenting on the treatment claimed by Mr Chimata and in particular providing detail of the “scrambler therapy.”
[34] Page 78 of the insurer’s bundle.
Dr Sekel provided a further report dated 22 December 2021[35] after being provided with additional documentation and he considered there was no reason to alter his previous opinions.
[35] Page 674 of the insurer’s bundle.
Dr Machart has provided a series of reports to the insurer. In the first dated 10 November 2017[36] Dr Machart takes a consistent history of the accident and the claimant’s treatment.
[36] Page 105 of the insurer’s bundle.
The claimant reported severe low back pain radiating into both legs and headaches. He had neck pain and right shoulder pain.
The claimant reported bladder incontinence and sexual dysfunction which had been investigated by Dr Dowla and treated with medication.
The claimant complained of pain when the skin on his neck and lumbar spine were touched. There was a reduction in motion in the lumbar spine which was symmetrical. Reflexes were bilaterally absent, sensation was diminished in the right foot globally, strength could not be tested.
There was a two third and symmetrical reduction of motion in the neck.
Dr Machart commented on the reasons for shoulder the surgery (to stabilise an unstable shoulder) and not to address pain and stiffness. He noted there were no reports of instability in the shoulder. He considered the claimant’s presentation unreliable and “entirely functional and not in keeping with objective evidence of injury.” Dr Machart indicates the claimant has been “overtreated” and that psychological issues might need to be addressed. He declined to assess impairment on the basis that the injuries had not stabilised.
In a second report dated 11 October 2019, Dr Machart records a report from the claimant there had been “some improvement.” As injuries had stabilised, he assessed shoulder impairment at 8% and found no impairment to the cervical or lumbar spine.
In a third report dated 11 February 2011[37] Dr Machart notes the claimant was having “scrambler therapy” which he found helpful and he was feeling better with less intense pain. He was working. He complained of migraines twice a week, neck pain and low back pain.
“There are features of chronic pain and level of disability beyond expected from the pathology of injury which remains unaltered. Mr Chimata was treated for instability in the right shoulder. The shoulder is now stable. Reasons for substantially diminished movement are not immediately obvious.
The pathology in the cervical spine and lumbar spine is multilevel degenerative conditions. No structural impact or acute injury. There is evidence of chronic pain outside of the parameters of the orthopaedic injuries.”
[37] Page 123 of the insurer’s bundle.
He thought there was no physical treatment necessary but that the focus of treatment should be on his migraines and pain management.
In a supplementary report dated 2 December 2021[38] Dr Machart had been given Medical Assessor Cameron’s reasons, psychiatric assessment and Dr Sundaraj’s report and noted there was inconsistency in the physical presentation with the pathology of injury.
[38] Page 670 of the insurer’s bundle.
Psychiatric injuries
Dr Vickery has provided two reports to the insurer. In the first dated 30 December 2019.[39] The claimant reported the accident and said he had been pulled from under the car. He said he was bedridden for a year and he has financial stress and pressure from family due to his de facto relationship.
[39] Page 129 of the insurer’s bundle.
Dr Vickery diagnosed an adjustment disorder and assessed WPI at 7%.
In the second report dated 24 February 2021 the claimant gave a history of tension, depression, panic attacks, nightmares, forgetfulness and heart palpitations. Dr Vickery did not consider a diagnosis of post-traumatic stress disorder on the basis the accident was not major.
Dr Vickery was of the view the claimant’s condition best fit a somatic symptom disorder due to his focus on health-related concerns and anxiety over same. He expressed the opinion that this disorder was not due to the accident and found no impairment as a result.
A final report was obtained from Dr Vickery on 4 January 2022[40] following the receipt of the decision from Medical Assessor Friend in which Dr Vickery sets out in detail his reasoning process for his diagnosis of a Somatic Symptoms Disorder with predominant persisting pain.
[40] Page 681 of the insurer’s bundle.
Workers compensation insurer reports
The claimant relies on a bundle of primarily correspondence between the workers compensation insurer and treatment providers. This supports the claimant’s submission that the workers compensation has engaged with the issue of the accident and the treatment and approved and paid for it which means it must be reasonable and necessary treatment.
The insurer has provided 200 pages of medico-legal reports from Dr Panjratan orthopaedic surgeon (including five copies of a report dated 19 April 2017 and six copies of a report dated 24 July 2017), Dr Reutens psychiatrist and Dr Molloy, pain management, as well as reports from Dr Sundaraj and Dr Parmegiani already provided.
The records suggest that the workers compensation insurer was actively involved in attempting to return the claimant to full time employment and improve his functional tolerances and engagement with activities of daily living.
RE-EXAMINATION FINDINGS
The claimant attended an examination with Medical Assessor Home on 27 July 2023.
Past medical history
Mr Chimata confirmed a past history of Diabetes Mellitus, managed with Metformin, before the accident. He sees his GP regularly for monitoring of his blood sugar levels and diet.
He denied prior complaints of neck, back or right shoulder pain. He denies other musculoskeletal complaints.
He reports that he remained physically active and was coaching a youth soccer side before the accident.
He worked in a full-time category as a manager and business consultant in the procurement field.
Details of subject accident
Mr Chimata said he was injured when he was struck by a reversing car. The accident occurred in Pitt Street in Sydney whilst he was crossing a road to attend a meeting.
He said the impact was to his right hip and that he fell forward onto his hands and knees. He was assisted up by bystanders and says he kept going because he had to attend an office meeting. He was there for approximately one hour but then developed dizziness and after he drew his symptoms to the attention of his Human Resources (HR) manager they called him a taxi and he was taken home.
History of symptoms and treatment following the accident
The day after the accident, Mr Chimata says he attended his usual GP, Dr Kumar. He recalls early symptoms of pain in his neck, back and right shoulder with less prominent pain in his left shoulder, right thigh, right knee and both ankles.
Mr Chimata recalls that after initial treatment from Dr Kumar, he went back to his previous general practitioner, Dr Morsingh. He confirms he was referred to Dr Maniam who recommended surgery to manage a capsular injury to the right shoulder. This was done on 11 October 2016 and incorporated a labral repair.
The claimant recalls that his shoulder was managed in a sling for six weeks. He then commenced range of motion exercises followed by supervised exercise using a TheraBand elastic under the supervision of a physiotherapist.
Mr Chimata says he attended Dr Dowla, neurologist and there were changes made to his medication.
In June 2017, he attended Dr Sundaraj, a pain physician. He recalls that he underwent cervical spine injections on two occasions. He recalls transient relief from his symptoms for up to a month after each injection.
He later received a trial of scrambler therapy, which involved five sessions of treatment over a one-week period. He recalls symptom benefit for two or three months after the procedure. He had two further trials of the therapy with a similar response. The last trial occurred in 2019.
Mr Chimata says he has not attended Dr Sundaraj since 2021. He currently attends his GP who has prescribed the following medications for his physical injuries which he takes usually after his work days:
(a) Mersyndol Forte – three to four tablets up to four to five days weekly;
(b) a mixture of Voltaren anti-inflammatory medication and Tramadol 100mg analgesia approximately once, three days a week, and
(c) Temazepam as a hypnotic, one tablet three times a week.
He uses a TENS machine and sits in a massage chair periodically.
He undertakes TheraBand elastic exercises most days and periodically attends a physiotherapist for dry needling and TENS application and traction. He experiences temporary symptom benefit one or two days after any treatment.
He walks 15 to 20 minutes for exercise most days. He says that his weight is now at his pre-accident level.
Subsequent medical conditions
Mr Kumar confirms that he suffered a heart attack in early 2022. He underwent two coronary stents. His cardiac condition is under review by a cardiologist and his GP is monitoring his blood pressure and cholesterol levels.
Current symptoms
Mr Chimata describes intermittent neck pain present most of the day on his workdays and about half the day on his non workdays. He says that the intensity of pain varies up to 7/10 using a visual analogue scale (VAS). The pain is usually felt on the right side and in the midline. There is associated occipital headache and sometime a global headache.
He describes activity-related pain in the right shoulder. There is limited motion at the shoulder. He says he cannot reach above shoulder height or behind his back. He is able to sleep on his right shoulder for short periods before rolling off. He limits lifting with his right hand to small objects weighing less than 5kg and not above waist height. He says he prefers to lift with his left hand.
Mr Chimata said he had no symptoms in the left shoulder.
He describes intermittent low back pain, present about half of the day, of average intensity of 6/10, sometimes worse on the right. There is sometimes pain radiating to the back of the right thigh. There is no distal radiation of pain below the knee. He describes occasional paraesthesia at the dorsum of both feet. There is no related bladder or bowel dysfunction.
The claimant describes intermittent lateral right ankle pain but no symptoms in his left ankle.
Functional capacity and reported tolerances
Mr Chimata says he is able to sit for 45 to 60 minutes. He describes a standing tolerance for 15 to 20 minutes. He avoids running. He is able to crouch with care. He performs stair climbing asymmetrically leading up with his left.
He describes broken sleep despite the use of Temazepam.
He is independent in activities of self-care.
Social history
He has been in a de facto relationship for seven years and has a 16-year-old son (to a previous marriage), who visits him on some days. He is a non-smoker.
He says that he helps out with light-bench height tasks, simple food preparation, including re-heating meals. He can load the top rack of the dishwasher, but not the bottom and can perform bench-height cleaning. He was previously able to load a top loader washing machine. The couple now have a front loader machine, which his de facto partner loads.
He is able to hang washing on a rack, but his partner usually performs most of the clothes hanging.
His workers compensation insurer has been paying for a cleaner, who attends four hours fortnightly to perform the heavier domestic chores. The workers compensation insurer also pays for a gardener to manage the 600 square metre block.
He says he has not been able to return to previous active hobbies of playing tennis, cycling, swimming, camping and coaching youth soccer.
Vocational history
He currently works three days in his previous role. He says that whereas he previously attended client meetings face to face, he now works from his home office. His work is sedentary in nature. He takes postural breaks during his work-days.
CLINICAL EXAMINATION
Mr Chimata is a now 46 years of age standing at 180cm tall and weighing 108kg.
Cervical spine
Examination of the cervical spine revealed normal spinal curvature. There was no muscle spasm. Active movements of the spine were:
(a) flexion was performed to 3/4 normal range and extension 1/2 normal range, right. There was mild dysmetria in flexion and extension motion;
(b) rotation both sides performed to 2/3 normal range, and
(c) lateral flexion was performed to 1/3 normal range on both sides.
The neurological examination of the upper extremities revealed:
(a) normal upper limb power (5 out of 5);
(b) normal sensation throughout (two-point discrimination test);
(c) deep tendon reflexes were symmetrically preserved, and
(d) no wasting or atrophy of the muscles in the upper arms of either side.
Right shoulder
At the right shoulder, active motion was measured as follows:
(a) flexion 90 degrees;
(b) extension 30 degrees;
(c) abduction 70 degrees;
(d) adduction 40 degrees;
(e) external rotation 60 degrees, and
(f) internal rotation 60 degrees.
While there were pain behaviours present throughout the shoulder examination, the range of motion was consistent on retesting.
Left shoulder
At the left shoulder, active motion was normal in five out of the six movements. The movements were measured as follows:
(a) flexion 180 degrees,
(b) extension 50 degrees,
(c) abduction 170 degrees,
(d) adduction 50 degrees,
(e) external rotation 90 degrees, and
(f) internal rotation 80 degrees (10 degrees loss of motion).
There was no evident muscle wasting or atrophy about the shoulder or of any upper extremity muscles.
Thoracolumbar spine
Examination of the thoracolumbar spine reveals normal spinal curvature. There was no muscle spasm. Active movements were measured and recorded as follows:
(a) flexion 1/2 normal range, extension 1/2 normal range;
(b) lateral flexion 2/3 normal range on both sides, and
(c) thoracic rotation was performed to 1/3 of range on each side.
Straight leg raise was performed to 60 degrees bilaterally with back pain limiting further movement. The sciatic tension signs were negative.
The neurological examination of the lower extremities revealed normal lower limb power throughout. The deep tendon reflexes were symmetrically preserved. There was no muscle atrophy or wasting at either the calf or thigh on both sides.
Right ankle
There were no localising clinical signs of injury at the right ankle with a full range of active motion. Mr Chimata’s left ankle movements were also full.
There was no gait disturbance.
Consistency
The claimant was consistent in his clinical presentation of cervical spine, right shoulder, left shoulder and thoracolumbar spine motion.
There was no difference in range of motion between informal observation and when Mr Chimata was being formally examined.
The range of motion in the upper extremity (shoulders) was consistent with retesting. Spinal motion (cervical, thoracic and lumbar) was consistent on repeated testing.
CONSIDERATION OF THE ISSUES RAISED IN THE PROCEEDINGS
Reliability of the claimant’s evidence and consistency
In the insurer’s original submissions, the insurer placed in issue the reliability of the claimant’s evidence and his credibility as a historian and urged the Medical Assessor to consider subjective complaints as substantiated by objective evidence. The insurer has asserted in these proceedings that the claimant has presented inconsistently to various assessors and examiners.
Medical Assessor Home records that while there were pain behaviours evident, the claimant was consistent within the medical examination.
It is the medical members of the Panel’s view that in the case of the right shoulder condition, the plaintiff has undergone surgical management and Mr Chimata’s restriction of movement is consistent with that surgical management and the radiological findings.
In the spine there are findings of injury as well as degenerative and congenital conditions which have been aggravated by the accident. It is the clinical judgment of the medical members of the Panel that the claimant’s complaints are consistent with the pathology and the injuries and aggravations.
Noting the insurer’s submissions, the Panel has considered the measurements obtained by other examiners and reproduced below.
Left
Flexion
Extension
Abduction
Adduction
Internal
RotationExternal
RotationDr Stephenson
30 Apr 2019130 30 160 50 70 80 Dr Sekel
24 Apr 2020180 50 180 40 80 80 MA Cameron
8 Mar 2021180 50 180 50 90 90 Review Panel
4 Dec 2022180 50 180 50 80 60 Review Panel
27 Jul 2023180 50 180 50 90 90
The claimant’s left shoulder movements have been, apart from the first examination with Dr Stephenson, very similar.
Right Flexion Extension Abduction Adduction Internal
RotationExternal
RotationDr Machart
Nov 2017110 40 90 10 80 10 Dr Stephenson
30 Apr 2019110 20 130 50 60 80 Dr Machart
Oct 2019110 40 90 10 80 50 Dr Sekel
24 Apr 2020140 50 140 40 80 80 MA Cameron
8 Mar 202190 30 110 20 80 80 MA Herald
28 Nov 2022120 40 120 40 60 80 Review Panel
4 Dec 202290/100/90 23/30/20 80/70/80 20/10/0 80 60 Review Panel
27 Jul 202390 30 70 40 60 60
The measurements taken by Medical Assessor Home of Mr Chimata’s right shoulder movements are reasonably aligned with previous examinations although his flexion and abduction are equal to the lowest since the first recorded measurements. This is considered by the medical assessors to be consistent with increasing shoulder joint stiffness related to reduced physical activity.
While the Panel notes other examiners found inconsistent ranges of motion in the spine and shoulders, the clamant was co-operative and consistent during the course of the examination with Medical Assessor Home.
There is a degree of exaggeration in Mr Chimata’s histories. For example, in his claim form the claimant says he was run over by the reversing car and Dr Morsingh had a history from Mr Chimata of him being flung to the ground and trapped under the car. Dr Makesh Kumar has a history of the claimant going under the car. While it is difficult for the Panel to ascertain from the film precisely what happened after the claimant was hit, his injuries are not consistent with being “run over” by the wheels of a car.
There are also examples of exaggeration in the claimant’s symptoms. For example, Mr Chimata gave a history to Dr Mukesh Kumar of having “occipital neuralgia” from hitting his head on the road and of “multiple surgeries”. The Panel is aware of only one surgery, the arthroscopic surgery undertaken by Dr Maniam in October 2018.
The Panel notes that there is also some inaccuracy from the clamant in respect of his weight. The claimant told Medical Assessor Home that he was now at his pre-accident weight. The claimant was weighed at 108kg. The records show that the claimant has never been weighed by Dr Kumar at less than 115kg. The claimant is said to have told Dr Morsingh on 16 July 2016 that he had put on 3.5kg since the accident due to inactivity. The records of Dr Kumar’s practice state the claimant weighed 123.3kg on 1 July 2016 and the claimant’s weight on 16 July 2016 recorded by Dr Morsingh was 121kg. It would appear the claimant may have lost weight not increased his weight since the accident.
The Panel will consider carefully the claimant’s evidence when undertaking this assessment.
Causation of injuries
Disputes about treatment in a motor accident claim require consideration of the following:
(a) what injuries were caused by the accident;
(b) does the disputed treatment relate to those injuries, and
(c) is the disputed treatment reasonable and necessary in the circumstances?
The insurer has raised an issue in its submissions as to what injuries were caused by the accident.
What injuries have resolved?
Mr Chimata lists in his claim form injuries to his head, shoulders (both), left ankle, right leg and ankle, bladder, back and neck as well as depression.
The contemporaneous notes from Dr Kumar the day after the accident include a record of an injury to the left ankle, right shoulder, right chest wall, right hip and knee.
At the examination with Medical Assessor Home the claimant made no complaint of any ongoing sequelae in his left ankle, left shoulder, right hip or knee. These injuries have resolved and require no further treatment.
The claimant did not report any ongoing bladder or other issues suggesting a cauda equina syndrome in his lower back. While the claimant has a congenitally narrow spinal canal and the lumbosacral disc bulges may have caused some bladder issues immediately after the accident, as Dr Maniam foreshadowed, the broad based disc bulge causing the problem has settled causing no ongoing symptoms and no further treatment.
The claimant reported ongoing intermittent mild symptoms at the lateral aspect of the right ankle. No objective abnormality was found by Medical Assessor Home at the examination, and the Panel is satisfied that any injury to the claimant’s right ankle has resolved and requires no further treatment.
The Panel also notes the claimant complained to Dr Kumar of chest pain the day after the accident, but he made no complaint of any such injury to Dr Morsingh or in his claim form or to Medical Assessor Home. The Panel is therefore satisfied there are no ongoing symptoms in the chest related to the accident that require any further treatment.
What injuries were caused by the accident?
The Panel notes the claimant’s WPI assessments have proceeded on the basis of the referral and assessment of injuries to the neck, lower back and both shoulders. The insurer has raised in its submissions, the issue of causation of these injuries. Noting the Panel’s finding in respect of the left shoulder above, the Panel will restrict its consideration of causation to the injuries to the neck, lower back and right shoulder.
The test of causation of injury is twofold and requires a finding that an injury could happen and that it did happen.
The Panel notes the insurer’s submission that the accident was “minor” on the basis that the ambulance did not attend.
The Panel has been provided with CCTV footage that shows the accident. The accident can be seen in the reflection of a glass window to the left of the screen. It is not direct footage of the accident itself and while many of the details are hard to make out, the claimant can be seen walking and being hit by a reversing car with some force. What happened afterwards is hard to make out. Appellate courts in cases such as Blacktown City Council v Hocking[41] have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. The Panel is, without expert evidence in respect of the film, reluctant to make any further findings about the film.
[41] [2008] NSWCA 144.
The Panel is satisfied on the basis of the film, that the claimant could have sustained an injury to his neck, lower back and shoulders in the circumstances of this accident in terms of him being struck by a reversing vehicle and falling.
The Panel notes the insurer’s submission as to the severity of the injuries noting that the claimant’s symptoms developed later.
When Mr Chimata attended upon Dr Kumar the day after the accident, Dr Kumar ordered imaging of only the right shoulder.
On 5 July 2016 the claimant complained to Dr Kumar of severe lower back and right shoulder pain. On 16 July 2016 the claimant attended Dr Morsingh mentioning only back pain and on 18 July 2016, the claimant attended with a list of injuries including the back (with sciatica to the feet), right and left shoulder injuries, neck pain and headaches. Dr Morsingh’s records suggest ongoing complaints mainly about the claimant’s neck, lower back, and right shoulder thereafter.
The claimant was hit by a car that he did not see approaching and knocked down. He was anxious to get to a meeting. He says he was shocked. It is the clinical judgment of the medical members of the Panel that it is plausible for the claimant to have suffered injuries to his neck, lower back, and right shoulder and for him to not experience symptoms for hours afterwards.
Mr Chimata has complained since the day after the accident of right shoulder symptoms. The Panel is therefore satisfied that Mr Chimata sustained a soft tissue injury to the right shoulder associated with labral tear with Hill-Sachs deformity, for which he underwent capsular repair under the care of Dr Maniam. He has been left with pain and restricted motion at the right shoulder due to the shoulder injury.
The claimant’s first report of back pain occurred on 5 July 2016, a week after the accident and there have been ongoing complaints thereafter. It is the clinical judgment of the medical members of the Panel that it is medically plausible for the claimant to have been injured and for the emergence of these symptoms to be delayed or for there to be a delay in them being reported. The Panel accepts therefore that the claimant injured his lower back in this accident.
The claimant’s first report of neck pain occurred on 18 July 2018 and there are sporadic references to neck pain in the records of Dr Morsingh thereafter. It is the clinical judgment of the medical members of the Panel that it is medically plausible for the claimant to have injured his neck in the accident and for the emergence of these symptoms to be delayed or for there to be a delay in them being reported. The Panel accepts therefore that the claimant injured his neck in this accident.
It is the clinical judgment of the medical members of the Panel that the following injuries were sustained by Mr Chimata in the accident:
(a) cervical spine – soft tissue injury aggravating pre-existing degenerative changes;
(b) right shoulder – soft tissue injury and capsular injury, and
(c) lumbar spine – soft tissue injury including lumbar disc bulges on a background of congenital canal stenosis.
Whilst the majority of patients with soft tissue injuries recover in the short to medium term, It is the clinical judgment of the medical members of the Panel that in some cases, symptoms persist in the long term. It is also noteworthy that the claimant has a psychiatric injury assessed at the Commission and by others as causing a permanent impairment of greater than 10%. It is also accepted that the recovery from injury can be suboptimal in patients like Mr Chimata who have diabetes mellitus and who have a greater risk of post-traumatic shoulder capsulitis.
It is the Panel’s view that the claimant’s injuries to his neck, lower back and right shoulder are still causing symptoms requiring treatment.
ASSESSMENT OF TREATMENT DISPUTES – GENERAL PRINCIPLES
Is treatment related to the injury resulting from the motor accident?
An insurer is not under a duty to pay for treatment if it does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine whether the disputed treatment already provided relates to the neck, back and right shoulder injuries, as well as the other injuries that have now recovered. The Panel must also determine whether the disputed treatment to be provided (future treatment) relates to the neck, back and right shoulder, which the Panel has found are causing continued symptoms which still require treatment.
The Panel is aware of the decision of AAI Limited t/as AAMI v Phillips[42] where the test of causation for surgical treatment was determined in a matter where the claimant had three motor accidents. The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident …
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery [emphasis added]. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[42] [2018] NSWSC 1710 (Philips).
The test then for the Panel to apply then is whether the injuries resulting from the accident were a material contribution to the need for the particular type of treatment claimed by Mr Chimata and disputed by the insurer.
Is treatment reasonable and necessary in the circumstances?
In order for the insurer to be under a duty to pay for 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” in accordance with s 60 of the Workers Compensation Act 1987. That test was considered by Grove J in Clampett v WorkCover Authority of NSW[43] where he said:
“[22] I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ …
[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 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.”
[43] [2003] NSWCA 52; (2003) 25 NSWCCR 99 (Clampett).
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.
In Diab v NRMA Ltd[44] 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.
[44] [2014] NSWWCCPD 2 (Diab).
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Mr Chimata’s treatment is “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 Panel.
Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment because that is dealt with when considering whether the treatment relates to the injuries caused by the accident. It may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury or a condition but for the treatment to be compensated in this scheme it must “relate to the injury caused by the accident”.
ASSESSMENT OF MR CHIMATA’S TREATMENT
Domestic assistance
Is domestic assistance related to the injuries caused by the accident?
The Panel has found that the claimant suffered soft tissue injuries to the cervical spine, lumbar spine and right shoulder, which remain symptomatic. The claimant reports that lifting anything heavier than 5 kgs aggravates his pain levels and the clinical examination revealed a restriction of right shoulder motion and spinal movements.
The Panel is satisfied that the domestic assistance that Mr Chimata says he has received since the date of the accident is related to the claimant’s injuries and his consequent disabilities and impairments.
Whilst the medical members of the Panel acknowledge other general medical complaints including diabetes mellitus, high cholesterol, hypertension and the claimant’s recent cardiac event, these are not considered to be sufficient to warrant assistance with domestic chores at the time of the assessment (leaving aside a period associated with the claimant’s cardiac event, his surgical treatment for that and a period of time for recovery).
Is domestic assistance reasonable and necessary in the circumstances?
The Panel will consider the dispute about domestic assistance from the date of the accident to the date of assessment (past) and from the date of assessment for the remainder of the claimant’s life expectancy (future).
The Panel is satisfied that the claimant’s neck, back and right shoulder injuries are sufficient to warrant assistance with heavier domestic chores, namely overhead cleaning, bedmaking and moving furniture before vacuuming and mopping. It is appropriate and acceptable for Mr Chimata to have this assistance in order to prevent further injury noting in particular his vulnerable spine and his repaired right shoulder.
There is no available alternative treatment to domestic assistance. The claimant has to have assistance with the heavier domestic chores (e.g. having his bed made) or else they will not be done.
Noting the claimant’s pain behaviours and the general soft tissue nature of his injuries, the Panel is not satisfied that from the perspective of his physical injuries only, that any other domestic assistance is required.
For how long should domestic assistance treatment be provided?
The medical members of the Panel note that it is six years since the date of the accident and noting his psychological state in particular, it is the clinical judgment of the medical members of the Panel that while the claimant may improve, the claimant is unlikely to fully recover and therefore the claimant’s physical injuries give rise for some domestic assistance from the date of the assessment into the future.
The claimant says he should be allowed domestic assistance for the remainder of his life.
The Panel is not of the view that treatment should be allowed for the remainder of the claimant’s life. It is the clinical judgment of the medical members of the Panel that as all persons age their strength and ability to perform heavy domestic duties generally deteriorates. It is also to be borne in mind that the claimant has a number of pre-accident co-morbidities including obesity which would be a significant contribution to the need for assistance in any event and as he aged.
While it is difficult to be precise, the Panel is of the view that it is reasonable and necessary for the claimant to have assistance with the heavier domestic duties from the date of assessment until he turns 60.
Medication
Is the medication claimed related to the injuries caused by the accident?
The dispute concerns analgesia and anti-inflammatory medications listed as Mersyndol Forte, Naproxen, Endone, Voltaren and Tramadol. The Panel notes the claimant said his current GP has prescribed Mersyndol Forte, Voltaren and Tramadol. The dispute concerns whether medication should be allowed from the date of the assessment and for the remainder of the claimant’s life expectancy.
The claimant reports he is taking medication prescribed for his pain. There is no evidence to suggest the claimant had any similar conditions before the accident and therefore the Medical Members of the Panel consider that pain-relieving medication is related to the claimant’s injuries.
Is the medication claimed reasonable and necessary?
It is clearly reasonable and necessary for a person in pain to take pain killers.
The medical members of the Panel note that Mersyndol Forte contains codeine and tramadol is addictive. Therefore long-term use of these medications is not reasonable and necessary. Anti-inflammatory medication if taken in combination with blood thinning medication (usually prescribed after cardiac procedures including stenting to prevent clots) increases the risk of internal bleeding and therefore with Mr Chimata’s history, must be considered by his treatment providers carefully.
The medical members of the Panel are of the view that it is reasonable and necessary in the circumstances of the claimant’s injuries and co-morbidities for the claimant’s treatment to include simple, over the counter analgesic medication.
The Panel is reluctant to stipulate the number of tablets or quantity of the medication. The therapeutic dose of this medication should be a matter to be determined by the claimant’s treating practitioners.
For how long should this medication be provided?
The claimant’s symptoms of pain following on from his neck, back and right shoulder soft tissue injuries has continued over a period of six years. It is the clinical judgment of the medical members of the Panel that the claimant will not go on to make a full recovery and will always require some level pain relieving medication.
The Panel is satisfied that the claimant has a future need for medication arising out of the physical injuries he has sustained in the accident however the Panel notes that the claimant has degenerative changes in his left shoulder and neck and that it is likely that these conditions would be a material contribution to the need for some pain killing medication in any event in future years particularly as he ages.
GP reviews up to four times per year
Is the need for up to four GP reviews per year accident related?
A person with chronic pain, such as the claimant, would need regular review by a GP up to four times a year to monitor medication and progress and deal with any exacerbations or aggravations from time to time.
The medical members of the Panel are satisfied that Mr Chimata’s physical injuries on their own have caused a need for GP review up to four times a year.
Is a GP review up to four times a year reasonable and necessary?
Had the claimant not been injured, the claimant would have been required to attend his GP in any event. Mr Chimata has diabetes and needs to have his sugar levels monitored and medication adjusted. Mr Chimata has had a cardiac event and will need ongoing monitoring of his cholesterol and review of his cardiac related medications for life.
The Panel is not of the view that it is reasonable and necessary for the claimant to have a review with his GP four times a year solely for the purposes of the physical injuries sustained in this accident.
It is the Panel’s view that it is reasonable and necessary for the claimant to have one attendance on his GP a year in relation to his physical injuries from the date of this review on the basis that if he has other issues from time to time, they can be discussed with his GP during other routine consultations.
For how long should these GP reviews be provided?
The Panel is not of the view that this treatment should be allowed for the remainder of the claimant’s life. It is the clinical judgment of the medical members of the Panel that as all persons age their need to attend upon a doctor will often increase. It is also to be borne in mind that the claimant has a number of pre-accident co-morbidities including obesity, diabetes and heart related which will continue for the remainder of his life in any event.
While it is difficult to be precise, the Panel is of the view that it is reasonable and necessary for the claimant to have an additional review with his GP in relation to his accident-related physical injuries until he turns 70.
Pain consultations up to four times a year
Is the need for up to four pain consultations per year accident related?
The claimant has had pain management treatment from Dr Sundaraj since 12 June 2017. This treatment was directly related to managing the claimant’s pain from his physical injuries including his neck, back and right shoulder.
While there is no proposal from Dr Sundaraj for further pain management consultations and no immediate plan for this treatment to be provided, the Panel is of the view that if there was any proposal for further consultations it would be related to the injuries sustained in the accident.
Is pain consultation up to four times a year reasonable and necessary?
The Medical members of the Panel do not find that further pain specialist consultations are required from the date of this review and for the remainder of the claimant’s life expectancy. Whilst the claimant reported transient symptom benefit up to three months following previous invasive and experimental ‘scrambler’ treatments, the gains were not sustained. The treatments did not change the nature of the claimant’s underlying injuries nor lead to any permanent improvement in his capacity or reduction in his medication requirements.
The claimant is managing his symptoms with medication, suitable activity modification and daily exercise. Further invasive and non-invasive treatment provided under the supervision of his pain specialist is not required in the future.
The Panel is not satisfied that further pain specialist consultations is reasonable and necessary in the circumstances. The Panel also notes that the history given by the claimant to Medical Assessor Home is that he has not had any pain management treatment for two years.
CONCLUSION
In summary, the Panel’s findings are that in relation to the claimant’s physical injuries sustained in the accident of 29 June 2016:
(a) there was an injury-related need for assistance with heavy domestic duties from the date of the accident to the date of this Review and that the assistance provided was reasonable and necessary in the circumstances;
(b) there is an injury-related need for assistance with heavy domestic duties to be provided from the date of this Review until the claimant turns 60 and this assistance is reasonable and necessary in the circumstances;
(c) there is an injury-related need for simple analgesic medication to be provided from the date of the Review for the remainder of the claimant’s life expectancy and that this medication is reasonable and necessary in the circumstances;
(d) there is an injury-related need for one GP review per year from the date of this Review until the claimant turns 70 and this review is reasonable and necessary in the circumstances, and
(e) while pain consultations may be related to the injuries caused by the accident, any consultations to be provided is not reasonable and necessary in the circumstances.
As the Panel has come to a different conclusion to Medical Assessor Shahzad, it follows therefore that his certificate should be revoked, and a fresh certificate issued.
0
5
0