El-Kazzi v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 591
•21 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | El-Kazzi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 591 |
CLAIMANT: | Michel El-Kazzi |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | David McGrath |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 21 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); dispute related to cervical perineural blocks and cervical discectomy and fusion; insurer’s review application; causation disputed; insurer alleges disability solely due to degenerative condition; claimant re-examined; discussion of benefits of treatment; vague treatment aims; appropriate treatment; no radiculopathy or uncontrollable pain; possibility revised conventional treatment could help; claimant reluctant to undergo surgery or nerve blocks; meaning of “reasonable and necessary in the circumstances” in section 3.24 of the MAI Act; no support for nerve blocks or surgery; preponderance of medical evidence including insurer’s specialist support accident aggravating degenerative condition; Held – accident caused injuries requiring treatment; both proposed treatments not reasonable and necessary in the claimant’s circumstances; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Treatment and Care and 1. The Panel revokes Medical Assessor Bodel’s certificate dated 5 February 2024. 2. The Review Panel affirms Medical Assessor Bodel’s finding in the certificate dated · perineural blocks requested by Dr Anil Nair, and · cervical discectomy and fusion requested by Dr Anil Nair, RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. 3. The Review Panel finds the following proposed treatment and care: · perineural blocks requested by Dr Anil Nair, and · cervical discectomy and fusion requested by Dr Anil Nair, IS NOT REASONABLE AND NECESSARY in the circumstances. |
REASONS
BACKGROUND
On 9 November 2019 Michel El-Kazzi was an Uber driver with two passengers. He was wearing a seatbelt, and his car was stationary at a red traffic light. The insured vehicle approaching the intersection from the right-side lost control and collided with the vehicle adjacent to Mr El-Kazzi on his right forcing that vehicle into the right side of Mr El-Kazzi’s vehicle moving it several metres to the left. His car was towed and later written off.
Mr El-Kazzi suffered several injuries in the accident which required treatment.
The insurer is liable to pay to Mr El-Kazzi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The disputed issues presently are whether the subject accident caused an injury to the neck requiring proposed surgical procedures; whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.[1]
[1] See appendix A for statutory provisions.
Following Schedule 2, cl 2 of the MAI Act, these disputes are medical assessment matters.
The proposed treatment and care are cervical perineural blocks and cervical discectomy and fusion. The claimant’s treating orthopaedic surgeon Dr Anil Nair requested these treatments on 1 December 2021[2] and 2 December 2021.[3] The internal review response declining to approve this treatment dated 11 April 2022 does not contain any information regarding that request.
[2] page 1074 FINAL Claimant’s bundle.
[3] page 1077 FINAL Claimant’s bundle.
Dr Nair noted that scans showed multilevel degenerative pathology, which he characterised as permanent and anatomical aggravation. Dr Nair initially recommended a CT guided C5/6 foraminal nerve root block and further conservative management incorporating physiotherapy, chiropractic treatment and exercise physiology. The earlier nerve root block provided temporary but fleeting relief.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor, and following s 7.26 of the MAI Act, on review by a review panel (Panel) consisting of two Medical Assessors and a Member of the Personal Injury Commission (Commission).
MEDICAL ASSESSMENT
Medical Assessor Bodel issued a Medical Assessment Certificate dated 5 February 2024 (the medical assessment).
Medical Assessor Bodel relied on changes seen in a cervical MRI scan dated 27 October 2023, which he characterised as causing new pathology. He concluded that the accident caused those changes and that these were contributing to his symptoms.
The Medical Assessor concluded that the proposed treatment was reasonable and necessary. He qualified this finding because the perineural block injection was largely diagnostic. The justification for cervical discectomy and fusion would depend on whether the blocks relieves neck and arm pain.
THE REVIEW
The insurer applied to the Commission for referral of the medical assessment to a review panel within 28 days after the medical assessment was issued.
The President’s delegate referred the medical assessment to the Panel as the delegate was 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.
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 cl 14A (1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) follow 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.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
The parties filed separate bundles totalling in the order of 1,369 and 666 pages respectively, included multiple copies of documents.
STATUTORY PROVISIONS
The balance of statutory provisions, relevant case law on causation and the applicable Motor Accident Guidelines (Guidelines) are set out at Appendix A.
Matters considered and decided by the Review Panel
The Panel met on 25 June 2024 to discuss how this matter may proceed.
The Panel discussed the parties’ bundles.
The Panel considered the High Court decision in Gamestar Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623. The Court observed in the absence of submissions referring to specific documents that a tribunal is not required to search for references within documents where the submissions do not specifically address the materials. The Panel also commends the comments of Bellew J in Bevan v Bingham [2023] NSWSC 19 concerning the obligation of legal practitioners to place only the necessary evidence before the decision maker.
The Panel noted the insurer’s submissions on why the original assessment should be reviewed. The submissions referred to Medical Assessor Bodel failing to refer to the points against causation and treatment in Dr Richard Powell’s report dated 2 September 2021.[4] Further, the Panel noted that the insurer objected to the Medical Assessor relying on a recent MRI scan of the neck taken in October 2023, which Mr El-Kazzi brought to the exam, as the insurer had not viewed it and wished to make submissions. The insurer has had the opportunity to make those submissions since.
[4] Michel El-Kazzi - Index to review Bundle – enclosures page 21.
The Panel considered re-examining the claimant was required. Medical Assessor McGrath agreed to examine the claimant on the Panel’s behalf on 25 July 2024 and write the report.
The parties provided the relevant scans on CD to the Panel before the examination.
Claimant’s submissions
Dr Nair examined the claimant on 26 August 2020.
Dr Nair initially recommended a CT guided C5/6 foraminal nerve root block and further conservative management incorporating physiotherapy, chiropractic treatment and exercise physiology.
MRI scans of the cervical spine at C5/6 and C4/5 showed disc herniation.
On 27 October 2021, Dr Nair recorded the following:
“I reviewed Michael clinically and radiologically. He remains troubled by cervical, lower back and worsening upper and lower extremity radicular symptoms. Fortunately, there were no pathological reflexes elicited. I have requested corticosteroid injections.”
The initial injections were approved and administered.
On 1 December 2021, Dr Nair reported the following to Mr El-Kazzi’s general practitioner (GP):
“In view of permanent and anatomical aggravation we seek funding for perineural blocks. I reviewed El-Kazzi clinically and radiologically. The repeat MRI revealed foraminal stenosis at CS/6 consistent with his clinical presentation. The MRI lumbar spine did reveal that the LS/51 disc is contacting the exiting nerve roots.
I have discussed options, in regard to the cervical spine he had only very short relief from the perineural block. I have discussed the option of an anterior cervical discectomy and fusion.”
Dr Nair’s request to approve surgery on 2 December 2021 showed he viewed the cervical condition as a result of disc herniations at C5/6 with mechanical symptoms radiating into the shoulders and occipital headache.
The claimant submitted on 8 November 2022 that he had exhausted all conservative treatments.
The claimant submitted the proposed blocks and surgery were reasonable and necessary treatment because they were:
· directly related to the injuries sustained in the accident;
· aimed at helping the claimant get back to his usual activities;
· appropriate for this injury he has sustained;
· provided by an appropriate health professional, and
· cost effective.
The claimant attempted to submit the claimant’s chiropractic records provided on
14 August 2024, as a late document on 16 August 2024.[5] Viewing them they do not appear to be relevant to the questions the Panel must resolve, in particular the question of whether the proposed treatment is reasonable and necessary. There are no submissions on relevance, other than it is in the interests of justice to admit the notes. The Panel declines to consider them.[5] 240814 El-Kazzi Clinical records of JB HealthCare (AH).
Insurer’s submissions
Before the accident the claimant had a history of cervical spine symptoms.
A full X-ray of the claimant’s spine and pelvis on 25 August 2012 showed “large flowing osteophytes anteriorly at the C4/5 and C5/6 levels reflecting DISH”, which stands for dispersed idiopathic skeletal hyperostosis.
On the day of the accident the hospital notes record a cervical spine CT scan was clear clinically and radiologically. It also noted there were changes that would have occurred before the accident. Six days after the accident the claimant attended on his GP to report restricted movements and cervical spine pain.
Further examinations did not note anything remarkable about the cervical spine condition, although there was some pain.
The claimant’s GP cleared him to maintain his driver’s licence and there were no complaints or observable signs of cervical problems, despite several attendances with healthcare providers until 26 August 2020. The insurer submits it was not until 8 December 2020 that the claimant complained about cervical issues.
The insurer referred to the claimant informing Dr Powell he has had chiropractic and physio treatment for his neck in the 12 months before the accident.
Dr Powell’s report addressed treatment Dr Nair had already given and an early reference to possible surgery. Dr Powell did not support Dr Nair’s proposed treatment, but he was not addressing the treatment Dr Nair eventually proposed.
The insurer submits the accident caused cervical spine injuries that were limited to soft tissue and did not require the invasive treatment Dr Nair recommends.
The insurer submits Dr Nair is the only treatment provider who detected neurological symptoms. Before the accident the claimant’s cervical spine was symptomatic and there were degenerative conditions already located. The insurer wants a decisionmaker to find the claimant’s cervical condition is the result of a gradual deterioration, which would have occurred whether the accident happened or not.
The insurer impugns the claimant’s credit on the basis that Dr Richard Powell is the only specialist who noted Mr El-Kazzi informed him he had neck symptoms before the accident.
Documentation
The Panel considered the documentation set out in the parties’ bundles.
The insurer specifically refers to Dr Powell’s report as more dependable than Dr Nair’s opinion.
Dr Powell found the accident aggravated pre-existing degenerative disease processes involving the cervical spine, lumbar spine and both shoulders. He did not mention it was temporary.
He found the claimant’s then treatment was reasonable; consisting of medication, exercise physiology and a home-based exercise program. Dr Powell accepted the claimant was experiencing ongoing symptoms and functional restrictions in those body parts.
This report was not commenting specifically on Dr Nair’s requests to the insurer to approve the surgery because it pre-dates the request. However, Dr Powell did not think the proposed foraminal nerve root block or cervical surgery (which Dr Nair mentioned in his earliest letter to the claimant’s GP) was clinically indicated. He thought that sticking to the prescribed program the claimant would be enough to eventually restore him to being fit for work.
The insurer asked Dr Powell for an opinion on the presence of degeneration, based on the scans of those injured body parts.
Dr Powell opined these were a source of intermittent symptoms in the past, but they had not created any restrictions in being a taxi driver/Uber driver before the accident. Dr Powell opined the usual trajectory of these conditions was for gradual deterioration over time and increasing symptoms into the future which in turn may have had an impact on his ability to maintain unrestricted employment.
Despite the insurer’s specific request to opine that the spinal and upper extremity degeneration was the operative cause of the restriction Dr Powell wrote it was difficult to objectively quantify this.
Dr Powell opined his ongoing symptoms and functional restrictions related to the accident would require some degree of assistance for cleaning and gardening at least 12 months after September 2021.
Re-examination
Pre-accident medical history and relevant personal details
Mr El-Kazzi attended alone on Medical Assessor McGrath on 25 July 2024 at the Commission’s medical suites Mr El-Kazzi is 55 years of age. He is married with three children aged 22, 20 and 14. His wife is a carer and mother without paid employment.
He emigrated from Lebanon at age 21. In Lebanon, he obtained a diploma in electrical engineering. On arriving in Australia, he was unable to obtain employment with this qualification and began taxi driving. He later moved to Uber driving which had been his occupation in the last five years leading up to the accident. While working as an Uber driver, he worked 12–14-hour days, up to six days per week.
Mr El-Kazzi records a previous sporting interest in social basketball and soccer. He has a recreational interest in collecting silver coins.
Mr El-Kazzi does not recall any previous motor vehicle accidents which required treatment. He states that with long hours in the taxi he was developing some stiffness within the spine and received some maintenance therapy from a friend of the family who was a physiotherapist and chiropractor. He denies he had any significant pain from the spine and was able to move his neck in particular through its full range.
He developed diabetes at around age 45 associated with some mild hypertension. He has been on medication since that point.
He is a non-smoker and a social drinker of alcohol.
History of the motor accident
Mr El-Kazzi was involved in a motor vehicle accident on 9 November 2019. He had a passenger in the back and was stationary at a traffic-controlled intersection when he was hit on the right hand side by the adjoining vehicle in a secondary collision. That is, the insured vehicle missed a turn and hit the car adjacent to Mr El-Kazzi then pushing his car some 5-6m to the left. Pictures show side panel damage to Mr El-Kazzi’s vehicle.
The car adjacent to Mr El-Kazzi burst into flames so the fire brigade was in attendance. Police and ambulance came.
Mr El-Kazzi showed Medical Assessor McGrath video footage of the accident. It confirms that he was sitting at a traffic-controlled intersection underneath an overpass when there was a sudden right-sided impact.
History of symptoms and treatment following the motor accident
He reported he felt fairly immediate neck, right arm and shoulder pains. He was taken to St Vincent’s Hospital where he was examined, investigated and discharged after three hours or so.
After leaving St Vincent’s Hospital, he contacted his friend and physiotherapist who advised that he would be unable to treat him until he was investigated. He was referred to Dr Khan who had an interest in third party claims. Dr Khan ordered an MRI scan of his neck.
Mr El-Kazzi was treated with physiotherapy initially twice per week over a three month period. He does not report any progress from this intervention.
He was also treated for his shoulder pains. Ultimately, rotator cuff injuries were diagnosed and Dr Jonathon Herald operated on both left and right shoulders.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
Mr El-Kazzi sketched his pains onto a body diagram. He indicated that he had mostly right-sided neck pain or discomfort. He did not indicate any referral into the shoulder or down into the right arm. He also has lower spinal pain which was injured in the accident.
As a result of his combined pains, he feels he has been unable to return to work as an Uber driver. He is frustrated by his progress. He has consulted a neurosurgeon, Dr Nair, who has recommended surgery on the basis of his chronicity.
Mr El-Kazzi is able to sleep with a comfortable pillow although he needs to change position during the night. Provided he tucks the pillow into the nape of the neck, he can lie on left and right sides. He did not sleep on his back prior to the accident. He is unable to sleep on his stomach.
Current and proposed treatment
The claimant is seeking a satisfactory resolution to his problem. He is not enthusiastic about surgery. Current treatment consists of a set of stretches for neck and shoulders, which should be revised. Some analgesics are taken when needed.
Examination
Cervical spine
Mr El-Kazzi has a restricted range of motion in the neck but not asymmetrically so. In particular, he has stiff lateral flexion. Flexion and extension were relatively well retained. Modest muscle hyperactivity was noticed during lateral flexion. He did not have non-verifiable radicular complaints.
A neurological examination of the upper limbs was conducted. He had normal deep tendon reflexes, power and sensation into both arms. There were no signs of muscular atrophy. He did not have radiculopathy.
Radiology
MRI scan of neck reveals multilevel moderate changes, most obvious at C4/5 and C5/6 levels with anterior disc bulging and ligament pathological changes, consistent with DISH. No signs of central or foraminal compression. Geometric alteration in sagittal plane, with posterior fat deformation, consistent with longstanding movement fault of cervical joints.
Consistency
Examination consistent with history and previous exams. Medical Assessor McGrath found the claimant to be forthright and genuine.
General assessment (diagnosis and cause)
Mr El-Kazzi was involved in an accident on 9 November 2019. This was a side impact collision with respect to his vehicle, which shunted the claimant’s vehicle sideways.
Following the impact, he had immediate neck pain distributing into the right shoulder and arm. He has since been diagnosed with bilateral rotator cuff tears which have been surgically corrected. He continues to report neck stiffness and discomfort as well as lower spinal pain and discomfort.
Current examination does not support any radiculopathy from the neck. There is mild neck movement restriction and discomfort which is insufficient justification for major neck surgery.
Medical Assessor McGrath considered the exercises prescribed for the claimant for his neck rehabilitation were a poor choice for his condition. He opined that the claimant’s exercise physiologist should modify his plan.
Panel deliberations
The Panel met again on 13 August 2024.
The Panel decided to adopt Medical Assessor McGrath’s examination report with its conclusions as evidence.
Panel decision
Does the proposed treatment relate to the injury resulting from the motor accident?
The Panel must decide whether the specified treatment “relates to the injury caused by the motor accident.” The common law test of causation under the MAI Act was discussed by the Supreme Court in Briggs No. 2.[6] These principles are well settled.
[6] Wright J in Briggs No. 2 [2022] NSWSC 372.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[7] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[7] [2018] NSWSC 1710 at [29] (Phillips).
The Panel found the accident materially contributed to permanent aggravation of the degenerative cervical condition detected on several MRI scans.
This is based on the claimant’s immediate reference to neck pain in the accident and the preponderance of medical evidence.
The claimant admits he had low level symptoms from time to time before the accident in his occupation as a taxi driver and this required treatment. It did not restrict him working as a taxi driver, unlike the current symptoms, which are linked to the subject accident.
The insurer’s specialist found the accident caused a material contribution to aggravate the claimant’s existing degenerative cervical condition. The claimant’s treating surgeon opined it was permanent.
The preponderance of medical evidence supports the Panel’s finding.
Reasonable and necessary in the circumstances
Mr El-Kazzi must establish that the treatment is both “reasonable and necessary.” This is a more onerous test than the NSW workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary.”
Workers compensation jurisdiction decisions provide some guidance though as when Grove J stated in Clampett v WorkCover Authority of NSW:
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”[8]
[8] [2003] NSWCA 52 (Clampett) at [22]-[23], Meagher & Santow JJA agreeing.
This draws the distinction with motor accidents legislation which requires two steps of considering whether there is a rationale for the treatment related to injury suffered in the subject accident; then addressing whether it is necessary.
However, key decisions address the criteria of reasonableness in the context of the workers compensation jurisdiction. The late learned Deputy President Bill Roche listed these relevant considerations in Diab:[9]
“the appropriateness of the particular treatment;
the availability of alternative treatment;
the cost of the treatment;
the actual or potential effectiveness of the treatment, and
the acceptance by medical experts of the treatment as being appropriate or likely to be effective.”
[9] Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Decision makers in the Commission’s Motor Accident Division have applied those paragraphs of Diab as relevant considerations, which assist to establish whether proposed treatment is reasonable and necessary.[10]
[10] See Sarwary v Allianz Australia Insurance Limited [2023] NSWPICMP 125.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the claimant’s particular circumstances. This follows Schedule 2 of the MAI Act which refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from considering whether treatment “relates to the injury caused by the accident.”
The insurer does not provide detailed submissions on whether the proposed treatment is reasonable and necessary, other than to rely on Dr Powell’s opinion.
The claimant submissions are summarised above.
The cost of the treatment is not discussed but it would not be insubstantial, as it involves surgery with two days in private hospital, time off work and rehabilitation.
The claimant’s submissions suggest that the claimant is resorting to this surgery as a last resort after conservative treatment has failed. Noting Medical Assessor McGrath’s opinion – based on his clinical expertise as a spinal physician– about the current exercises the claimant was performing, there is alternative non-invasive treatment available which could lead to improvement.
Although there has been significant conservative treatment it may have been inadequate, and this should be explored. There has been a focus upon both shoulders which had been bothering him before the accident and investigated as recently as 2018. Subsequently he received surgery for rotator cuff disease.
The Panel notes that Dr Nair advised the claimant of the risks in undergoing this surgery, and they are substantial, even if they are rarely manifested. Any surgery carries risks and the claimant demonstrated during the re-examination that he was reluctant to pursue surgery or the nerve blocks.
Currently there is no radiculopathy, unrelenting pain or worsening neurological symptoms supporting surgery or nerve blocks.
It is not clear that the benefits of surgery exceed the risks of failure and an adverse outcome. Dr Nair presents a brief argument in favour without stating a concrete outcome, and
Dr Powell provides a brief rebuttal supporting conservative treatment. On balance, the weight goes towards modifying the conservative treatment and waiting to see if there is improvement.The Panel agreed that none of these points were in favour of surgery or nerve blocks.
Noting the claimant’s circumstances the Panel cannot find that the claimant has established that the surgery and nerve blocks are reasonable and necessary.
CONCLUSION
For these reasons, the Panel concludes that although the accident has caused injuries which create the need for treatment, the proposed treatment is not reasonable and necessary.
The Panel has made a different decision to Medical Assessor Bodel.
Medical Assessor Bodel’s certificate dated 5 February 2024 regarding whether the proposed medical treatment was reasonable and necessary is revoked. The Panel will issue a new certificate.
APPENDICES
APPENDIX A
Statutory provisions and authorities
MAI Act 3.24 “Entitlement to statutory benefits for treatment and care
(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) The Motor Accident Guidelines may provide for—
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).
Note—
See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation. It is unclear and unlikely the provisions in Part 6 of the Motor Accident Guidelines 9.2 (the Guidelines) relating to the meaning of causation of injury and impairment apply to assessing causation in treatment disputes. This is because Part 6 specifically applies only to assessing permanent impairment.
In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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), ss 5D 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.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
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