Economos v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Economos v Allianz Australia Insurance Limited [2021] NSWPICMP 243
CLAIMANT:	Nicholas Economos
INSURER:	Allianz Australia Insurance Ltd
REVIEW PANEL:	Principal Member John Harris Dr Shane Moloney Dr Neil Berry
DATE OF DECISION:	10 December 2021
CATCHWORDS:	MOTOR ACCIDENTS- The claimant suffered injuries as a pedestrian in a motor vehicle accident; the dispute related to various treatment that had been provided including MRI scans and cortisone injections; Held- the claimant suffered injury to the lumbar spine given the complaints at hospital; the allegation of injury to the cervical spine was accepted as consistent with the mechanism of injury and scan undertaken at hospital; sufficient that motor accident was a material cause for the need for treatment; AAI Ltd v Phillips; all treatment was causatively related to the accident; further MRI scan of the cervical spine was not necessary as one had been undertaken 12 months earlier; more than three injections into lumbar spine not necessary as unlikely to benefit claimant; NRMA v Diab applied; original medical assessment revoked in part.

Reasonable and Necessary in the circumstances
Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999

The Review Panel revokes the certificate dated 17 March 2021 and issues the following certificate:

The following treatment and care:

MRI scan of the lumbar spine performed on 8 January 2019;

Three right sided L5/S1 facet joint and transforaminal injection,

IS REASONABLE and NECESSARY in the circumstances.

The following treatment and care:

MRI scan of the cervical spine performed on 27 September 2019;

Any injections more than three right sided L5/S1 facet joint and transforaminal injections,

IS NOT REASONABLE and NECESSARY in the circumstances.

REASONS

Background

Mr Nicholas Economos suffered injury on 10 August 2017 when he was walking across a road and struck by a motor vehicle.

The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Economos any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

The issues in dispute are whether the following treatment was “reasonable and necessary and necessary in the circumstances” and “relates to an injury caused by the motor accident”. The treatment was described as follows:

“MRI scan of the lumbar spine performed on 8 January 2019;
MRI scan of the cervical spine performed on 27 September 2019;
Right sided L5/S1 facet joint injections;
Right L5/S1 transforaminal steroid injections.”

We observe at the outset that the legal practitioners and the Medical Assessor have, at times, confused the distinct concepts of:
(a) reasonable and necessary in the circumstances, and
(b) relates to an injury caused by the motor accident.

There is a mistaken tendency in this matter and generally for parties to assume that if treatment is not “reasonable and necessary” then it does not relate to an injury caused by the accident. The concepts are distinct and are discussed later in these reasons.
Pursuant to s 58 of the MAC Act, various matters are medical assessment matters including whether “the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and whether “such treatment relates to the injury caused by the motor accident”.

A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[1] Section 60 of the MAC Act.

The disputes were referred to Medical Assessor Truskett who issued a medical assessment certificate dated 27 May 2021. The reasons of the Medical Assessor will be referred to in due course.

The review

The application for referral of the medical assessments to a review panel was made by Mr Economos within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 63(7) of the MAC Act.

On 27 May 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 63(2B) of the MAC Act.

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[4] Section 63(3) of the MAC Act.

Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.

The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 63(3A) of the MAC Act.

The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties complied with this direction.

We observe that s 42 of the PIC Act provides that the guiding principle for the PIC Act and the Commission rules is to facilitate the “just, quick and cost-effective resolution of the real issues in the proceedings”.

The Panel issued a further Direction dated 1 December 2021 requesting submissions on whether the Panel could proceed in the absence of an examination. The parties separately advised that they agreed with this course.

Statutory provisions

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.

Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts. The insurer otherwise referred to clause 13.3 of the Medical Assessment Guidelines which simply repeats s 58.

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[8]. In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the Act.

Medical assessment

Medical Assessor Truskett provided a certificate dated 27 May 2021.

The Medical Assessor found that the MRI scan of the cervical spine was not justified as “multiple preceding scans showed essentially no abnormality”. The MRI scan of the lumbar spine was justified “given there was suggestion of disc injury in the preceding scan”.
In relation to the steroid injections the Medical Assessor stated:[10]
“[T]he imaging that has been described appears to be degenerative in nature and as a result is not considered causatively related to the injury or considered to be reasonable and necessary.”
[10] Claimant’s bundle, p 30.
The Medical Assessor noted that Mr Economos had undergone 12 neck and back steroid injections which “did not help”. Dr Ally Ghahreman was reported as advising against surgery and further injections.

Submissions

The claimant’s initial submissions referred to the cervical spine CT scan undertaken at the hospital which indicated complaints were made in respect of symptoms coming from the neck.
The claimant submitted that there could be multiple reasons for absence of complaint citing Bugat v Fox[11]. It was submitted that the claimant had more severe injuries, was on pain medication and “was also of the opinion that his neck pain was resulting for the injury to his left shoulder”.
[11] [2014] NSWSC 888.

The claimant was referred by Dr Herald to Dr Donnellan, Neurosurgeon who opined that a cervical MRI scan was required. He also relied on the opinion of Dr Herald on causation.

The claimant submitted that he followed the recommendations of his treating specialists, and the MRI investigation was required to determine the cause of the symptoms.

The hospital clinical notes specifically noted complaints of lumbar spine pain. The claimant was following treatment recommendations of his treating specialists.

On review, the claimant submitted that there was an absence of prior pain in the cervical spine and lumbar spine. The earlier MRI scans of the lumbar spine and the cervical spine dated 18 December 2016 incorrectly referred to by the Medical Assessor were of the claimant’s wife.

The initial referral by the treating specialist for the cervical spine MRI scan was against a background of worsening complaints of neck pain.

The claimant was previously asymptomatic in the spine. The fact that he had degenerative changes was “an over simplistic and plainly wrong approach to the determination of this issue”.[12]
[12] Claimant’s submissions, [25].

In its initial submissions the insurer denied “causation” and there were “no ongoing cervical and lumbar spine injuries attributable to the subject accident”.[13]
[13] Insurer’s submissions, [5].

The insurer referred to the absence of neck complaint at the hospital, on initial presentation before the general practitioner and in the claim form.

The insurer noted that a cervical spine MRI had been performed on 27 August 2018 which only demonstrated a low-grade disc bulge at C7/T1 without neural impingement. It submitted that “it does not follow that a further MRI investigation would be required in circumstances where no acute pathology was identified”.[14]
[14] Insurer’s submissions, [9].

Reference was made to Professor Fernside’s observation of “fairly minimal neck pain” and Dr Coroneous’ opinion of an absence of traumatic injury. It also referred to
[15] Insurer’s submissions, [14].
Dr Herald’s recommendations which included “no initial need for cervical treatment”.[15]

The insurer disputed a lumbar spine injury caused by the motor accident. There was no reference to the lumbar spine in the claim form and the report in the first post-accident GP consultation on 8 September 2017 was “has improved”.[16]
[16] Insurer’s submissions, [18].
The insurer relied on Dr Coroneous’ opinion that the lumbar MRI showed no traumatic changes and he concluded that there was no need for treatment. This is consistent with Professor Fernside’s opinion who declined to diagnose a lumbar spine injury and did not recommend further treatment.

In its review submissions the insurer submitted that there was no error. If there was any error identified by reference to the wife’s MRI scan, that was favourable to the claimant because that scan of the lumbar spine showed pathology.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
Within the records are various references to treatment for the teeth. We have not specifically referred to these records although they are relevant because they show direct trauma to the face when Mr Economos fell and the likelihood of some whiplash type injury to the cervical spine.

Claimant’s statements

Mr Economos provided a statement dated 22 January 2020. He stated that prior to the motor vehicle accident he was in full-time employment with no prior serious injuries or claims for compensation.
Mr Economos stated that he was struck with such force that he does not remember the accident. He remembers being in hospital suffering severe pain in the upper left region of the body, face, legs, head, lower back and neck.

Mr Economos stated that he suffers constant and uninterrupted pain in his back, neck, shoulders and knee which severely limits his activity.

In a supplementary statement dated 7 July 2020, Mr Economos stated that the pain was severe at hospital “up the entirety of my back and into my neck”. He stated that he reported severe lower back pain. At hospital Mr Economos “noted severe pain and stiffness in my neck”.

The claimant completed a claim form on 11 September 2017. He referred to injuries to the left collar bone, facial lacerations, cuts to both hands, chest bruising, cuts to right knee and elbow, pain in right knee, fractured teeth and memory loss.

Hospital notes

The hospital clinical notes record the following mechanism for admission:

“Patient was hit by a car travelling at approximately 30 km/h while crossing the road. He fell and hit his face to the ground. No loss of consciousness however may have been confused as he was repeating himself. Immediate left shoulder, facial and lower back pain.”

The notes record that the face impacted into the tarmac with paraesthesia of the left side, amnesic to events and tenderness on T12. The CT scan of the cervical spine showed no acute fracture and no soft tissue swelling.
The scan or x-ray of the lumbar spine revealed no acute fractures of the lumbo sacral spine but moderate L4/5 and L5/S1 facet joint arthropathy. The x-ray of the left shoulder/scapula revealed fracture of the distal left scapula with some displacement.

General Practitioner notes

The first clinical note following the motor vehicle accident is dated 8 September 2017 when the following is recorded:[17]
“Hit by a car walking across the road, fractured left clavicle, knees starting to hurt
fractured tooth
memory is impaired, didn’t remember anything form the accident and for an hour after, remembers being is hospital.
Remembers going for CT scan.
Right knee is painful
Has right facial abrasions and nose abrasions
So perhaps car impact on the left and the ground impact on right side of face and right knee.
Had lower chest pain and lower back pian post mva which has improved”
[17] Insurer’s bundle, p 385.

Dr Herald

Dr Jonathan Herald, Orthopaedic Surgeon, performed a right knee arthroscopy and ACL reconstruction on 30 November 2017.
On 11 December 2017, Dr Herald noted that Mr Economos was progressing well following surgery with tenderness in the shoulder and elbow joint and a “good range of motion of his neck”.

On 15 January 2018, Dr Herald noted 30% improvement in pain in the left shoulder following an AC joint injection, some numbness in the right knee which is improving in strength.

On 19 March 2018, Dr Herald noted some posttraumatic anxiety issues with increasing left shoulder pain. On 25 June 2018, Dr Herald noted ongoing knee and shoulder pain and referral to Dr Donnellan for the possible exploration of the saphenous nerve which may be caught up in the scar tissue in the knee. Further review occurred on 6 August 2018.
On 29 October 2018 Dr Herald opined that the MRI scan of the cervical spine showed a small disc bulge at C6/7 consistent with having had a whiplash type injury in the neck.
In February 2019 Dr Herald noted continuing left shoulder pain and restricted motion with some wasting. The doctor also referred Mr Economos to the neurosurgeon for assessment of the back and neck.
In a detailed report dated 1 February 2020, Dr Herald set out the extensive treatment in the matter. The doctor opined that the imaging was consistent with a whiplash injury in the neck. In relation to the lumbar spine, Dr Herald stated:
“[T]he nerve conduction studies from his leg showed that he may not actually have a saphenous nerve lesion but the problem that the numbness may be coming from issues in his back and as such these areas were imaged. The MRI scan of the back showed multilevel spondylosis with impingement in the right L5 nerve root which could be consistent with the symptoms he was experiencing. He was referred back to Dr Donnellan in regard to treatment for his neck and back as I was concerned that the multilevel impingement of the L3, L4 and L5 nerve roots may be resulting in weakness and numbness in his legs preventing recovery. Dr Donnellan suggested some cortisone injections initially for his neck and his back but in Dr Donnellan’s last report dated 16 January 2020 I note that the cortisone injections did not seem to give him much relief of his radicular type symptoms in his neck and back.”
Dr Herald concluded that the motor accident was responsible for radicular type symptoms in the neck and back rather than “formal back or neck pain”.

Dr Donnellan

Dr Donnellan initially examined Mr Economos on 8 August 2018. Further investigations were recommended at that time including whether there was any contribution from the neck to the shoulder symptoms.

On 17 October 2018 Dr Donnellan noted the recent nerve conduction studies and raised the possibility of compartment syndrome.

Dr Neil Griffith

Dr Neil Griffith, Neurologist, initially examined Mr Economos on 12 March 2018 who noted a recent history of increasing anxiety. The doctor then suspected post-concussion syndrome and organised an MRI of the brain.

On 11 May 2018, Dr Griffith noted significant improvement with the introduction of Lexapro. The lesion shown on the brain MRI scan was possibly congenital and shouldn’t be causing any dizziness. An MRI scan of the cervical spine was organised.

Nerve conductions studies eventually revealed the possibility of a mild sensorimotor peripheral neuropathy.

On 3 October 2018 Dr Donnellan noted the recent MRI scan of the cervical spine dated 25 August 2018 was normal. Dr Niranjan Ganeshan noted a “very low grade disc bulge at C7/T1 without neural impingement” and concluded that there was no cervical cord pathology.[18]
[18] Insurer’s bundle, pp 482-3.

Professor George Murrell

Professor Murrell examined Mr Economos on 29 August 2018. The doctor assessed a healed distal clavicle fracture of the left shoulder with minor ongoing problems which should resolve over the following 6-12 months.

Qualified opinions

Associate Professor Fearnside was qualified by the claimant’s lawyers and provided reports dated 30 November 2018[19] and 20 March 2020.[20]
[19] Claimant’s bundle, p 44.
[20] Claimant’s bundle, p 53.

In the first report the doctor noted fairly minimal neck pain and left brachial radicular pain and diagnosed “musculoskeletal injury”.

In the second report the doctor noted that the absence of reference to low back pain in the first attendance. Left brachial radicular pain to the third and fourth fingers was noted. The MRI scan of the lumbar spine was described as showing a small right L5/S1 disc protrusion with the nerve root “well seen” and multilevel lumbar spondylosis.

Lumbar spinal movements were described as normal and neurological signs were normal.

Dr Michael Coroneous, Neurosurgeon, was qualified by the insurer’s lawyers and provided a report dated 3 April 2019.[21] The doctor stated:
“In respect of the reporting of cervical and lumbar pain, I cannot relate these ongoing symptoms to the neurosurgical effects of the subject motor vehicle as there is no evidence of any significant cervical or lumbar injury having occurred.”
[21] Insurer’s bundle, p 485.
Dr Coroneous concluded that the orthopaedic and psychological aspects of the motor vehicle accident were left to an orthopaedic surgeon and other specialists.
The doctor stated that the hospital records did not report any spinal symptoms. That comment was incorrect.

Dr Ron Muratore, Sports Physician, provided a report dated 4 June 2020.[22] The doctor diagnosed a soft tissue injury to the neck and low back complicated by a persistent pain syndrome.
[22] Insurer’s bundle, p 520.
Dr Paul Spira, Neurologist, provided a report dated 27 March 2019. Dr Spira noted that considerable weight gain “has been blamed for accentuating the back pain”. The doctor noted that the physical examination “was replete with non-organic features” and a “gross overvaluation of injury and abnormal illness behaviour”. The doctor felt that
Mr Economos had suffered a psychological reaction to the accident and felt that there was a marked overvaluation of injury responsible for the clinical picture.

RE-EXAMINATION

The Panel advised the parties by direction dated 1 December 2021 that it was of the view that it can determine the Review without a further examination of Mr Economos. The parties sensibly accepted this suggestion.
The Panel determined that the review could proceed without a further examination because the claim was for a modest amount in circumstances where the medical expenses had been incurred. There was no utility from an examination on the claimant’s current condition when the dispute was in relation to expenses incurred in 2019.

The Panel otherwise has been provided with extensive materials from which it can determine the issues in dispute.

REASONS

The review is a new assessment of all matters with which the medical assessment is concerned. At the outset we advise that we have ignored the MRI scans taken of the claimant’s wife. Indeed, the claimant stated that they should be removed despite including them in his tender bundle[23].
[23] Claimant’s bundle, pp 85-86.

Lumbar spine injury

Contrary to the insurer’s submissions, there was recorded complaint of low back pain at the hospital. That complaint required referral for an x-ray of the lumbar spine. There was a further recorded complaint of low back pain at the first admission with the general practitioner. This material is consistent with the statement evidence of
Mr Economos of back pain at the hospital. Dr Coroneous’ interpretation of the hospital clinical records that there was an absence of back pain complaint at hospital is incorrect.
We note that there is no reference in the claim form that the low back was injured. However, that omission does not outweigh the obvious contemporaneous support for low back injury.

The nature of the motor accident is otherwise consistent with injury to the low back: QBE Insurance (Australia) Ltd v Shah.[24] The consistent history is that Mr Economos was struck by a motor vehicle and fell to the ground. That event is clearly capable of causing lumbar spine injury.
[24] [2021] NSWSC 288 (Shah).

Cervical spine injury

The motor accident involved a significant impact where Mr Economos landed face first causing loss of teeth, a fractured left clavicle, a closed head injury, right knee pain and lower back pain. The medical experts on the Panel observe that this was sufficient force to cause a neck injury at that time. That conclusion is consistent with the fact that medical staff at the hospital determined that a CT scan of the cervical spine be undertaken.

Whilst there is an absence of contemporaneous complaint of neck pain, such absence is not determinative of causation.[25] In this matter a number of doctors, including those qualified by the insurer, have accepted that Mr Economos suffered injury to the cervical spine.
[25] AAI Ltd v McGiffen [2016] NSWCA 229 at [64]-[66].

Accordingly, the Panel accept that Mr Economos sustained a whiplash type injury to the cervical spine when he fell striking his face on the ground.

Causal relationship between motor accident and treatment

The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[26]
[26] [2018] NSWSC 1710 at [29] (Phillips).
We refer to our findings on injury. We note the opinions of Dr Muratore and Dr Spira that Mr Economos has developed a pain behaviour. Those opinions do not preclude treatment for the back and the neck.

Dr Coroneous did not opine that Mr Economos did not have pain in these regions. His opinion was limited to concluding that there were no neurosurgical effects of the subject motor vehicle accident and opined that the orthopaedic aspects be left to an orthopaedic expert. That opinion does not preclude various treatment being related to the motor accident.
The opinion provided by the treating orthopaedic specialist, Dr Herald[27] provides a proper basis for the various treatment the subject of this dispute.
[27] Set out at [61] herein.

The MRI scan of the lumbar spine dated 8 January 2019 reported multilevel lumbar spondylosis with predominantly exit foraminal narrowing and potential for exiting nerve root impingement.[28]
[28] Insurer’s bundle, p 516.

In this regard we accept that Mr Economos was asymptomatic prior to the motor vehicle accident. The various treatment was recommended by the treating specialist for obvious pain caused by the motor accident.

The degenerative changes shown in the MRI scan of the lumbar spine would have been aggravated by the motor accident. The injections are related because it is a mode of treatment addressing spinal symptoms.

Our comments on causation equally apply to the further cervical MRI scan undertaken in September 2019. Whilst we have concluded that this scan was not “reasonable and necessary”, the provision of the further cervical spine scan relates to the symptoms caused by the motor vehicle accident.

For those reasons we conclude that the motor accident materially contributed to the subject treatment.

Reasonable and necessary in the circumstances

Mr Economos is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.

When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[29], Grove J stated:[30]

“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”
[29] [2003] NSWCA 52 (Clampett).
[30] Clampett at [22]-[23], Meagher & Santow JJA agreeing.

Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[31]
[31] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].

Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[32] They include:
(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[32] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
A poor outcome does not mean that the treatment was not reasonable and necessary. The Panel endorses the following observation from Diab:[33]
“Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.”
[33] Diab at [89].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the specific circumstances of the claimant. This is because s 58 of the MAC Act refers to treatment “provided or to be provided to the claimant”, that is the specific claimant the subject of disagreement between the parties.
In the present case the documentation shows that Mr Economos had a cervical spine MRI scan at hospital and again in 2018. Dr Herald was aware of the 2018 cervical MRI scan because it was referenced in his detailed report.[34]
[34] Claimant’s bundle, pp 39-40.

We agree with the insurer’s submission that there was no explanation why the MRI scan required repeating in 2019, particularly in the absence of distinct developing neurological symptoms. We do not accept that the MRI cervical spine scan dated 27 September 2019 is “reasonable and necessary in the circumstances”. The investigation was a repeat of one carried out 12 months previously and was unnecessary.
We accept that lumbar spine MRI scan was reasonable and necessary in the circumstances. The detailed report of Dr Herald provides the reasons why the scan was organised. The procedure is an acceptable medical investigation for diagnosis and of minimal cost. This was the first MRI scan of the lumbar spine as an x-ray had been taken at the hospital.

The Panel accepts that three injections into the lumbar spine were “reasonable and necessary in the circumstances”. The treatment was recommended by the treating specialists on a background of complaints of low back pain. The treatment is relatively low cost and is designed to treat the type of pathology shown on the MRI scan. The fact that the scan showed a degenerative condition does not mean that injections were not a suitable form of treatment.

It is unclear how many injections Mr Economos had into the low back. Medical Assessor Truskett recorded that Mr Economos had 12 injections into the low back and neck over a six-month period which did not help. The Panel was not requested to comment on injections into the neck.

Our view accords with the opinion of Dr Ghahremen[35] who recommended against further injections or surgical intervention into the neck and back.
[35] As recounted by the Medical Assessor.

The medical expertise of the Review Panel concludes that further injections above three would not provide any chance of a reasonable outcome. That conclusion is consistent with the opinion of a number of experts qualified by the insurer that
Mr Economos’ condition was complicated by a persistent pain syndrome.

FINDINGS

On review, the Panel accepts that Mr Economos sustained injuries to the cervical spine and lumbar spine.
The replacement certificates are set at the commencement of these Reasons.

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Citations

Economos v Allianz Australia Insurance Limited [2021] NSWPICMP 243

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13

Bugat v Fox [2014] NSWSC 888

QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288

[2021] NSWPICMP 243

10 December 2021