Farr v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Farr v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 768
CLAIMANT:	Kerry-Ann Farr
INSURER:	IAG Ltd t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	11 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Compensation Act 1999 (MAC Act); accident on 15 September 2017; claimant injured; dispute related to cervical discectomy and fusion; insurer’s review application; causation disputed; insurer alleges cervical condition due to accident has resolved and treatment is not reasonable and necessary; claimant re-examined; discussion of benefits of treatment; vague treatment aims; no current treating medical information; appropriate treatment; no radiculopathy or uncontrollable pain; conventional treatment could help and claimant still seeking conservative treatment; meaning of “reasonable and necessary in the circumstances” in section 83 discussed; no support for surgery; treating surgeon’s correspondence only proposes surgery after exhausting conservative treatment; preponderance of medical evidence including insurer’s specialist support accident aggravating degenerative condition; Held – accident caused injuries requiring treatment; proposed treatment not reasonable and necessary; original assessment revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Clive Kenna dated 11 January 2024 in respect of the treatment medical assessment matters. 2. The Review Panel has determined the proposed surgery to the cervical spine (anterior cervical discectomy and fusion at C5 to C7), as recommended by Dr Liu on 15 June 2021, is related to the subject motor vehicle accident, but is not reasonable and necessary in the circumstances.

STATEMENT OF REASONS

Background

Ms Farr (claimant) was injured when the insured vehicle collided with the rear of the car she was driving on 15 September 2017.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any compensation under the Motor Accidents Compensation Act 1999 (the MAC Act).
The claimant is a 53-year-old female.
There is a dispute between the claimant and the insurer about:
(a) whether any such treatment relates to the injury caused by the motor accident under s 58 (1)(b) of the MAC Act.
(b) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances under s 58(1)(a) of the MAC Act, and
The Personal Injury Commission (Commission) referred the following treatment disputes for assessment:
(a) whether the proposed surgery to the cervical spine (anterior cervical discectomy and fusion at C5 to C7), as recommended By Dr Liu on 18 May 2021, is related to the subject motor vehicle accident, and
(b) whether the proposed surgery to the cervical spine (anterior cervical discectomy and fusion at C5 to C7), as recommended by Dr Liu on 18 May 2021, is reasonable and necessary in the circumstances
On 11 January 2024, Medical Assessor Clive Kenna concluded that the treatment was not causally related to the accident and was not reasonable nor necessary.
The claimant applied to refer the medical assessment to a Review Panel within 28 days after the parties were issued with the original certificate.[1]
[1] s 63 MAC Act.
Responding to the application, the President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Kenna’s assessment certificate (the Review).
The Panel met on 15 July 2024.
The Panel considered the claimant’s long medical history including suspected lupus, injuries from falls at work as well as the car accident. She has had lumbar spine surgery in 2024, which arose from a work injury.
The Panel noted Ms Farr was referred in 2018 for cervical nerve root blocks, which provided temporary relief. Viewing the bundles the Medical Assessors were concerned there was a gap in Ms Farr’s general practitioners’ (GP) clinical notes for 2018. It was not clear whether the claimant consulted any specialist e.g. neurologist or else neurosurgeon/spinal surgeon about her neck during 2018 or which doctor referred her for the cervical nerve root blocks.
Ms Farr has attended several (at least 4 and possibly 5) GPs clinics, so to ensure the Panel had the correct time line the claimant's solicitors were directed to provide a schedule of clinics she has attended, indicating the range of dates she attended and her reasons (i.e. which conditions she was seeking treatment for).
The schedule was to be cross-referenced to where the relevant clinical notes for a particular clinic can be found in the claimant's or insurer's bundles. The parties complied with that direction.
The Panel considered the submissions on re-examination and decided Medical Assessor Lahz would re-examine the claimant on 9 October 2024 at the Commission's medical suites.

Review conduct

General

Ms Farr’s claim and entitlements to compensation are governed by the MAC Act and the Motor Accident Compensation Regulation 2020 (the Regulation).
The MAC Act dispute resolution is governed by the provisions of the MAC Act, the Personal Injury Commission Act 2020 (PIC Act) and the Personal Injury Commission Rules 2021 (the Rules).

Treatment

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

Causation of injuries

Ms Farr can only recover damages from the insurer for the losses incurred as a result of the injuries caused by the accident. The decision maker must determine whether the subject accident caused or materially contributed to injuries before individual treatment or impairments can be assessed.
The balance of the relevant authorities, Guidelines[2] and legislation regarding causation is set out in Appendix A.
[2] Motor Accident Permanent Impairment Guidelines version 1.

Assessment under review

Medical Assessor Kenna noted the evidence from the claimant’s treating surgeon and medicolegal specialists. He justified his decision as follows:

(a)    The motor vehicle accident caused soft tissue injury initially but that has resolved and whilst he opined the claimant has morphed into somewhat of a chronic pain scenario, there is a range of other factors such as pre-existent advanced degenerative change, two subsequent falls at work, and subsequent ongoing stress related to employment must be considered. Those conditions have probably been significant contributing factors with regards to overall pain presentation for which Dr Liu recommended she consult a pain specialist.
(b)    He noted Dr Liu recommended surgery but noted Dr Liu did not make a request to the insurer although there is a letter dated 1 July 2021 from the claimant’s lawyers to the insurer requesting approval referring to Dr Lui’s opinion. That doctor has since moved interstate and there is no other evidence that supports the operative procedure sought.
(c)    The request for surgery was therefore neither reasonable nor necessary nor does it relate to any comparable injury to the cervical spine caused by the motor accident.

Disputes and issues identified by the parties

The Panel referred to the claimant’s submissions provided for the review. The claimant’s bundle did not include submissions that were addressed to the original assessor.
The claimant was involved in the subject motor vehicle accident on 15 September 2017. The claimant alleged the accident caused injuries to the neck, left and right shoulders, lower back and both legs, together with psychological sequelae.
The claimant experienced cervical pain referring into the arms immediately after the accident and has been consistent in her complaints since then.
While the claimant sustained further injuries from subsequent workplace incidents, the claimant’s view pertaining to the cervical spine is that the subject accident has caused persistent chronic neck pain.
The claimant’s treating neurosurgeon, Dr Liu, suggested in 2021 the claimant may benefit from an anterior cervical discectomy and fusion, two level, C5 to C7, and that the operative procedure would be directly related to injuries incurred in the motor vehicle accident of the above stated date.
The claimant’s submissions refer to the causation issue, but did not address why the proposed treatment would be reasonable and necessary in the circumstances, nor refer the Panel to any reports or clinical notes which supported that proposition, apart from Dr Liu’s 2021 proposal.
The insurer’s submission is that whilst it acknowledges the motor vehicle accident in 2017 caused Ms Farr sustained neck pain, that Dr Liu is alone in recommending surgery. Similarly, Dr Liu had also recommended that she pursue further conservative treatment options before proceeding or considering surgery.
To support such a view, the insurer referred to the claimant’s visit to Associate Professor Davidson, neurosurgeon, who was her previous treating specialist, who saw the claimant in April 2019. Her bone scans at that time were considered such that his comment was, “There was no serious cause for her pain.”
Surgery was not indicated in view of the lack of pathology, but referral to pain management specialist or rheumatologist was recommended.
Similarly, it was noted that there was a claimant’s medicolegal report from Dr Fearnside, who noted in a report of July 2020 that there was no loss of objective signs of radiculopathy. He did not consider surgery was necessary and from the insurer’s perspective, a report by
Dr Keller noted in August 2020, “There were no future treatment needs attributable to the subject accident.”
That being the case, the request for surgery was not related to the subject accident and was neither reasonable nor necessary.

Documentation

The Review Panel considered the following documentation:
·        Medical Assessor Kenna’s certificate dated 11 January 2024;
·        Application for review and attached documents;
·        Reply and attached documents;
·        all the documents provided to Medical Assessor Kenna before the assessment under review, and
·        additional clinical notes in response to the Panel’s directions 16 July 2024.
Medical Assessor Lahz summarised these in her report.

REVIEW PANEL FINDINGS

Medical Assessor Sophia Lahz medical assessment report

Ms Farr attended the appointment punctually. She was pleasant and cooperative throughout. She presented in a straightforward manner.
Medical Assessor Lahz obtained the following history from Ms Farr who is aged 53 and right-handed.
She had travelled by car the previous day from her home at Maitland where she lives alone. Her son was driving her home the same day after this appointment. She moved to Maitland (from Penrith) during the pandemic initially to assist her father who was subsequently placed in a nursing home. She has remained living in the Newcastle area.
Dr Spittaler performed an L4-5 fusion on Ms Farr in March 2024, and she is still recovering from that surgery. In May 2023, she obtained a new administrative position with Hume Housing (usual hours are three days per week, seven hours per day). Her current hours are just four hours per day, three days per week given the recent lower back surgery.
Before the subject accident 15 September 2017, Ms Farr had been working full-time (35 hours per week) for Link Wentworth Community Housing with a mixture of office-based and field (travel) duties whilst visiting sites/clients.
Following the subject 2017 accident and the subsequent work injury (2021) affecting the lower back, Ms Farr has had several jobs in which she has struggled due to the effects of chronic neck and lower back pain and “brain fog” secondary to pain medications. Before she started her current position, there had been an agreement between Ms Farr and a former employer to vacate the position she held because she had not been coping very well and making errors.
By way of medical history, Ms Farr had intermittent low back pain preceding the 2017 accident. In either 2009 or else 2010 she fell down a flight of stairs with resultant coccyx fracture. She said the back pain was not a major problem until after the 2021 work fall on a travelator which culminated in her undergoing the L4/5 fusion earlier this year. She is a non-smoker who consumes small amounts of alcohol very occasionally.
Ms Farr denied any history of neck pain before the 2017 accident. (Medical Assessor Lahz reviewed five sets of available GP records with no notes of previous neck pain.)
Ms Farr has undergone various surgeries including cholecystectomy, four caesarean sections (four sons) and breast reduction. There is also a history of asthma. Twenty three years ago, following a difficult pregnancy it was suggested on the basis of a positive ANA (blood test) that she could have Lupus although at the time the diagnosis was not confirmed. The question of Lupus was revisited after the 2017 accident (circa 2018-9) due to pervasive fatigue, a faint butterfly facial rash and multiple aches and pains although once again the rheumatologist could not confirm the Lupus diagnosis. She took Plaquenil as a trial to see if it would make any difference to (painful) symptoms and it did not, so she ceased taking this medication. She reports now that she no longer has a positive ANA test.
Ms Farr confirmed her involvement in the subject accident 15 September 2017. She was the restrained driver of a small Holden Astra and had been stationary between two roundabouts when her vehicle was rear-ended (she said with force) by a Nissan Skyline, and her car pushed forward without hitting anything in front. There had been a large gold 4WD in front of her vehicle which drove away unscathed. She believes that had this not occurred, her car would have finished beneath the 4WD, and she reports ongoing nightmares relating to this possibility.
Ms Farr recalls being jerked backwards and forwards in the car, her head hitting the headrest. She was able to exit the car afterwards intending to speak with the other driver. However, the Skyline driver left the scene without speaking to others. Ms Farr retreated to her car to move it to a safer location out of the way of passing traffic which she said had been “beeping” her. She called 000 and requested ambulance and police attendance although no one arrived.
She phoned her partner who attended the scene. Her partner drove her from the scene to attend the Penrith Police station to file an accident report. She had felt immediate onset of posterior neck pain which worsened during the meeting with the police.
Ms Farr attended Nepean Hospital where she remained for several hours, undergoing CT scans demonstrating no neck fractures. The hospital diagnosed whiplash then discharged her. Whilst she was at hospital, she recalls neck pain increasing and the neck feeling very stiff. She also had some symptoms in the shoulder girdles R>L and between the shoulder blades.
Ms Farr visited her GP at HealthSmart Practice the following day and received simple painkillers (NSAIDS). She was certified unfit for work for several weeks and referred to physiotherapy comprising massage and exercises which she said did not provide relieve her neck symptoms. Nonetheless, she mentioned that she has been attending physiotherapy for her neck “on and off” ever since the 2017 accident which she has been self-funding.
In early 2018, she underwent an MRI scan of the neck which she informed Medical Assessor Lahz demonstrated no alarming findings. (The formal report refers to degenerative change at C5/6 and C6/7).
Late 2017-early mid 2018 was a difficult time for Ms Farr due to severe chronic pain, relationship breakdown, a stressful job and sleep disturbance. She started seeing a psychologist to “de-stress” her life as much as possible.
It was at this stage that she saw the rheumatologist regarding possible Lupus which as noted, was largely discounted following the unsuccessful (empirical) trial of Plaquenil.
All the while, the neck symptoms/pain were intensifying and spreading, to involve the shoulders, arms, and hands still R>L, initially the index fingers although latterly by late 2018-early 2019 the index, middle and ring fingers were affected. Ms Farr referred to burning, needle like sensations at the fingertips, noticeable whilst using a keyboard. However, she clearly states that neck pain and headaches have always predominated over upper limb symptoms since the 2017 accident.
During 2018, her Penrith-based GP arranged two cervical spine injections on
8 February 2018 and 4 July 2018 targeting the left C7 nerve root. (However, Ms Farr was adamant that the symptoms at the neck and arms, have always been worse on the right side, differing from the left, by around 20%).
She explained that the initial cervical spine injection provided 2-3 months of relief for symptoms at the head, neck, and upper limbs whereas the second injection provided lesser relief for just a month. “The effect of the injections was certainly not dramatic…. They helped a bit, took the edge off…”
During 2018, (associated with the posterior neck pain) Ms Farr was also plagued by severe circumferential headaches typically with which she would wake up every morning and which persist six years later. “I have to get on top of these immediately with painkillers or else they will develop into a full on migraine.” At the same time, she frequently awakes with a “dead” right arm though she points out that being side sleeper, she sometimes rolls onto this arm.
As noted, by late 2018-early 2019, neck pain, headaches and bilateral upper limb pain affecting index, middle and ring fingers was well-established albeit with intermittent symptoms which she had been managing.
She continued working her office based and field duties.
In October 2018, she tripped on a step entering a bathroom in the course of work, injuring the knees but not (she said) the neck. She said the symptoms quickly settled with little treatment/time off work required (she resumed on 23 October 2018).
Due to persistent neck pain associated with shoulder/upper limb symptoms, she saw
Dr Davidson, a neurosurgeon during 2019. He prescribed Gabapentin and Celebrex and advised her to lose weight. She said the medications helped the neck pain a little. He did not recommend any neck surgery.
Unfortunately, in 2021, she suffered a serious fall at work on a travelator giving rise to severe pain in the lower back/right hip. Initially, a scan was reported to demonstrate a hip fracture although in the finish it was decided that no fracture had occurred and that the hip and lower back symptoms were actually referred from the lumbar spine. A lengthy Workcover claim ensued relating solely to the lumbar spine and on this basis (but also due to COVID-19), she reported that treatment and investigation of persistent neck and upper limb symptoms was temporarily sidelined.
In 2021, she consulted Dr Shinuo Liu,[3] a neurosurgeon regarding both neck and lower back issues. Dr Liu, she said, wanted to operate first on the cervical spine although she then explained to him that her lower back symptoms were in fact more debilitating, and it was by this stage a struggle to walk.
[3] Dr Shinuo Liu’s two letters dated 18 May and 15 June 2021 pages 85–87 claimant’s bundle.

She told Dr Liu however of constant posterior neck pain associated with a burning sensation involving the entire right upper limb. The latter was worse, first thing in the morning and she would try to lessen pain by having a hot shower. There were also still the pins and needles present in both hands R>L affecting the index, middle and ring fingers.
Dr Liu advised both lumbar spine and cervical spine surgery although he also suggested that she see a pain specialist. His records also refer to helpful neck injections during 2018, which formed (according to the records) at least part of his rationale for recommending neck surgery being anterior cervical discectomy (decompression) and fusion (ACDF).
Unfortunately, Dr Liu relocated to Adelaide although he informed Ms Farr that he would refer her to a colleague at Macquarie University re the proposed neck and lower back surgery.
In October 2021, Ms Farr consulted Dr Boesel a pain physician although she said he could do little beyond rationalising her pain medications so that she would feel less foggy in the head. She has been on a host of pain and other medications inclusive of Pregabalin, Gabapentin, Celebrex, various antidepressant, and hypnotic medications such as Melatonin. After adjusting her medications, (according to Ms Farr) Dr Boesel suggested that she undergo the spinal surgeries and then return for his review because he felt there was nothing else, he could do to help her.
Subsequently, Ms Farr was referred to Dr Spittaler, a spinal surgeon regarding both the neck and lower back. However, according to Ms Farr, once he realised that there were two separate claims i.e. lower back work claim and neck claim, he said they needed to be “separated” so to date, only the lower back has been addressed by the aforementioned L45 fusion earlier this year.
A progress cervical spine scan was undertaken in November 2023 (unclear whether this was ordered by her GP Dr Pippa Lennox at Newcastle Medical Hub or Dr Spittaler), and she was also uncertain of the results. Again, the formal report of this investigation alludes to some degenerative changes at C5/6 and C6/7 with foraminal narrowing on the left side (compared with ongoing symptoms R>L).
At this stage, Ms Farr informed Medical Assessor Lahz that there has been no discussion with Dr Spittaler regarding the management of chronic neck pain with right > left upper limb symptoms.
Further, there has been no discussion regarding the proposed neck surgery with any specialist since she last saw Dr Liu during 2021.
She said that the lower back symptoms had overtaken her, and also the pandemic prevented further steps being taken to deal with the ongoing neck and upper limb pain. She is now especially anxious to rid herself of the predominant neck pain with severe headaches (and to a lesser degree) the associated bilateral upper limb symptoms R>L affecting the middle three fingers.
Medical Assessor Lahz asked the claimant about the reference in Dr Pippa Lennox’ medical records to “new pain in the left arm and shoulder” on 14 November 2023. She said the pain was localised to the anterior left shoulder and completely resolved after an injection. (A shoulder ultrasound showed bursitis, and she can now elevate her arm.)
An MRI of the cervical spine on 17 November 2023 showed degenerative change especially at C5/6 versus the left C6 nerve root.
Ms Farr said that she has asked the insurer several times to approve a consultation regarding the neck with one of the spinal surgeons at Macquarie, but the insurer has declined to fund such, so no progress has been made. She also mentioned that the distance between her home in Newcastle and Macquarie is an issue and that she would like to see a surgeon in Newcastle if there were an approval.
She managed to lose weight before the lumbar spine surgery. Her weight before the 2017 accident was 128kg, dropping down to 98kg by early 2024. It crept up again to 118kg although she is now doing a regular exercise regime with weight stable around 105kg. She reported doing regular hydrotherapy/water based exercise under the supervision of an exercise physiologist. Overall, her lower back symptoms have reduced by 50%.
At home, she has a cleaner for heavy tasks such as bathrooms and floors. She also pays a man for the yard work and mowing. She can complete the light household tasks and has a
2kg medically recommended lifting limit.
However, she emphasised the psychological trauma associated with the 2017 accident, compounded by the protracted and laborious claims/legal process becoming derailed by delays caused by Dr Liu’s departure and the pandemic. She is seeking a new psychologist in Newcastle given her Sydney based psychologist Dr Doring has now retired. Ms Farr is no longer taking any medications for mood or stress.
Ms Farr has been able to travel to Canada (twice) to visit her son and grandchild during 2022 and 2023. She flew economy class and had to work hard with the physiotherapist both before and after each trip.
She laments that she can no longer pursue hobbies she enjoyed before the accident such as water skiing, 4WDing and boating. She also highlighted significant problems with anxiety, depression and foggy thinking affecting memory and concentration.
Ms Farr’s current medications are a triptan taken as needed for headache, Melatonin for sleep, Panadeine Forte two tablets at night, Norgesic two tablets in the morning and Paracetamol/Celebrex regularly throughout the day.
In summary, Ms Farr says she had no history of neck pain before the 2017 accident and the past clinical notes confirm this. Within a few days of the accident, she had developed neck and bilateral shoulder pain R>L as well as interscapular pain/spasms and severe daily band like circumferential headaches worse on waking (and sometimes of migrainous intensity). Sometimes, she has to remain lying down with these headaches, depending on the severity.
Within a few months of the accident, she developed intermittent global right upper limb weakness and then pins and needles in both index fingers. By late 2018-early 2019, there were “elastic band/stinging/burning pains” involving both arms/forearms radial and ulnar aspects R>L 4/10 intensity as well as regular paraesthesia R>L in the middle, ring and index fingers associated with “hot needles” in the involved fingertips, all of which symptoms have persisted. She can awake with “dead arms” either side though the right is generally more affected. However, neck pain (constant 4-6/10 with random flare ups 8-9/10) and severe headaches have continued to predominate over the upper limb symptoms. There has never been any bowel or bladder dysfunction.

Examination

On examination, there was overweight body habitus with height 162cm and weight 107.7kg.
Ms Farr’s neck movements (observed across the desk) during the interview were unremarkable. She appeared to sit comfortably during the interview.
She presented in a straightforward manner during the examination without overt pain behaviours.
Gait was normal and she was able to walk on heels and also walk on toes without any fuss.
Neck movements were cautiously performed with 2/3 normal flexion and extension, 2/3 right lateral flexion and rotation, ½ normal range of left lateral flexion and rotation.
She indicated tenderness from the mid cervical spine downwards reaching the upper thoracic region. However, there was no muscle spasm or guarding evident at either the neck or else thoracic spine.
There was no measurable wasting at the arms 33cm 5cm above the elbow crease nor the forearms 29cm 5cm below the elbow crease.
Biceps, triceps, brachioradialis and pronator reflexes were present and symmetrical.
There was normal sensation aside from reduced sensation at the right ring fingertip and over the volar aspect of the left wrist (neither being within a dermatomal pattern).
There was full power in both upper limbs.
There was full range of bilateral shoulder motion aside from 2/3 of normal right-sided abduction and flexion associated with complaints of pulling sensations at the neck. There was no wasting about the shoulder girdles.
Upper limb neural tension tests were negative bilaterally.
In summary, aside from cervical spine tenderness, reduced neck movements and mild reduction of right upper limb elevation, there were no positive clinical findings.
Specifically, there were not the two signs present which are required per paragraph 6.138, page 109 of the Guidelines to indicate the presence of a cervical radiculopathy.

Conclusions

This is an unusual situation given that Dr Liu’s original surgical recommendation in 2021 is no longer relevant because he has since relocated and will no longer be involved in
Ms Farr’s treatment and care.
The contemporaneous documents indicate complaints of neck pain during the early aftermath of the accident. Neck complaints remain in evidence during 2018 and into early 2019. However, the trajectory of neck complaint becomes more difficult to follow due to the number of general practices attended (five) from 2017-2024, and also the advent of the work falls of 2018 with knee injury and then 2021 with lower back injury, proceeding to lumbar fusion in 2024. The situation with the neck also appears to have been complicated by pandemic factors/delays.
Ms Farr says that her problems with neck pain were overtaken by those in the lower back and compounded by other factors as above.
Ms Farr has been left with the recommendation for a cervical spine fusion by Dr Liu three years ago, without more recent consultations with any (treating) surgical specialist to reaffirm that neck surgery is actually necessary and/or likely to be effective.
Dr Liu’s records are not especially detailed and his basis for the initial recommendation of cervical fusion appears slight (i.e. that Ms Farr had been adamant as to the benefits of the cervical injections to the C7 root given during 2018). This is at odds with the claimant’s view that the cervical nerve root injections to the left C7 root in 2018 were not especially effective. Medical Assessor Lahz mentioned to the claimant that reportedly successful neck injections during 2018 formed part of the rationale for the recommended surgery although given the lapse of time, Ms Farr could not shed more light on this. Also, Dr Liu’s records at the time indicate symptoms more in the thumb (C6) not C7.
The symptoms (based on description in the medical records) have varied/altered location over time.
Multiple medico-legal specialists (Fearnside, Casikar) and some treating specialists (Davidson) have advised against cervical spine surgery.
Clinical neurological examination of Ms Farr’s neck and upper limbs is unremarkable. There are no clinical findings to confirm a cervical radiculopathy. She complains of neurological symptoms in both hands that are not in a dermatomal pattern. The areas of upper limb sensory loss noted on examination were also not within the distribution of a single dermatome.
The most recent cervical spine MRI of November 2023 also reportedly demonstrates degenerative findings worse on the left, in contrast to Ms Farr’s predominantly right-sided symptomatic complaints at the neck and arm.
On available information, the proposed cervical spine fusion is related to the 2017 accident. There was no evidence of neck complaints before the 2017 accident. Neck symptoms occurred from the time of the accident, which have persisted and were not present before the 2017 accident.
However, the proposed neck surgery is not reasonable and necessary given the recommendation was made back in 2021, and the basis for that recommendation was not apparently robust for the reasons given above. In any case, before proceeding to major surgery such as cervical decompression fusion, it would be mandatory to consult a neurosurgeon for an up-to-date review of the clinical circumstances.
There is also no evidence of cervical spine instability, nor is there clinical evidence of either radiculopathy or myelopathy for which such substantial (fusion) surgery would be indicated.
Further, the claimant reports R>L neck and arm symptoms whereas the most recent cervical spine imaging (and the previous imaging) findings were worse on the left side, giving rise to concern about the outcome of surgery when there is no good correlation between reported symptoms and imaging findings.

Discussion

The Panel considered the principles of causation set out in the Guidelines, in particular at cl 1 .7, in particular that the subject accident does not have to be the sole cause of a condition, but it can be a contributing cause, as long as the impact is not negligible. These clauses are addressed to causation of permanent impairment, but the principles are applicable to treatment disputes too. The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[4]
[4] [2018] NSWSC 1710 (Phillips) at [29].
The authorities on causation summarised in Appendix A of this decision refer to how medical review panels must decide initially whether it is medically possible for the condition to occur, and if it is, then the panel must weigh the evidence to see if it satisfies the balance of probabilities.
The Panel were of the opinion that after such a significant accident that it was medically possible the accident could have caused cervical strain leading to ongoing chronic pain.
In respect of considering whether the evidence supported the subject accident causing the neck pain, it considered the principles referred to in Kirby P’s dicta in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
These principles equally apply to the causal relationship of treatment under the MAC Act by reason of the same statutory language. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was also discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson. [5] The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident.”
[5] [2019] NSWCA 324.

Panel deliberations

The Panel adopted Medical Assessor Lahz’s examination report and conclusions as evidence. The Panel agrees with the conclusions.
Medical Assessor Lahz remarked that Ms Lahz had been consistent in her presentation at the examination.
The subject accident has a causal link to Ms Farr’s current cervical pain for the reasons set out in Medical Assessor Lahz’s examination report.
The Panel discussed Dr Shinuo Liu’s two letters dated 18 May and 15 June 2021. It is apparent that he considered the ACDF could be reasonable once Ms Farr “exhausts all conservative options” such as pain control and other non-invasive measures. The Panel discussed how the insurer had continued to decline to pay for such treatment or further appropriate specialist consultations, despite recognising in its submissions that the neck condition relates to the 2017 accident. This was despite her workers compensation claim for her lower back injury resulting in effective treatment.
Dr Lui’s letters read as more of an invitation to look at the surgery at a future date and not a “recommendation” which is how the dispute has been referred to the Commission.
It appeared that that the wrong questions had been referred to the Commission, and that the insurer could have facilitated conservative options to assist Ms Farr to recover and avoided this dispute. Such assistance could still be useful.

Treatment – causation

The Review Panel’s findings differ from Medical Assessor Kenna’s certificate in relation to whether the 2017 accident caused an injury to the neck at C 5/6, which is persisting and causing the claimant pain.
Based on this Panel’s findings on the nature of the injury to the discs at C4/5, we accept that the motor accident materially contributed to the claimant’s cervical condition.
The Panel is satisfied based on its clinical expertise and the preponderance of supportive medical evidence that the significant motor accident aggravated the disc pathology such that the motor accident remains relevantly causative of the need for further conservative treatment.

Treatment and care – reasonable and necessary

Medical Assessor Kenna found the treatment was not reasonable and necessary because he found the need for surgery was not caused by the accident.
However, as the Panel finds that the accident caused the relevant condition we must address the next aspect of this review.
Ms Farr 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.”[6]
[6] [2003] NSWCA 52 (Clampett) at [22]-[23], Meagher and Santow JJA agreeing.
The distinction with motor accidents legislation is that it requires two steps of considering whether there is a rationale for the treatment related to injury suffered in the subject accident; then addressing whether it is necessary.
However, key decisions address the criteria of reasonableness in the context of the workers compensation jurisdiction. The late learned Deputy President Bill Roche listed these relevant considerations in Diab:[7]
“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.”
[7] 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.[8]
[8] 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.
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 claimant does not provide submissions on whether the proposed treatment is reasonable and necessary, other than to rely on Dr Liu’s opinion. Dr Liu’s opinion is qualified by his reference to conservative treatment needing to be exhausted before the ACDF should be pursued.

The cost of the treatment is not discussed but it would not be insubstantial, as it would involve surgery with admissions in private hospital, time off work and rehabilitation.
The claimant’s submissions do not suggest that the claimant is resorting to this surgery as a last resort after conservative treatment has failed.
There is alternative non-invasive treatment available referred to in Dr Liu’s letters which could lead to improvement. The Panel also noted that Ms Farr’s self-funds her own conservative treatment related to the 2017 accident which the insurer declines to fund.
The Panel notes that there is no evidence of consideration of the risks in undergoing this surgery, and they are substantial, even if they rarely manifest. This is not a criticism of Dr Liu as his letters were addressing treatment options rather than being a prayer for approving the ACDF.
Currently there is no radiculopathy, unrelenting pain or worsening neurological symptoms supporting surgery.
It is not clear that the benefits of surgery exceed the risks of failure and an adverse outcome. On balance, the weight goes towards pursuing the conservative treatment and waiting to see if there is improvement.
The Panel’s opinion that it does not automatically follow that spinal fusion surgery should be pursued even if all conservative treatment options have failed.
The Panel agreed that none of the current points were in favour of surgery.
Noting the claimant’s circumstances the Panel cannot find that the claimant has established that the ACDF surgery is reasonable and necessary.
Due to differing causation finding, the original Medical Assessment Certificate is revoked, and the Panel will issue a new treatment and care certificate.

Review Panel certification

Member O’Riain, Medical Assessor Lahz and Medical Assessor Maloney have viewed these certificates and confirmed that they agree with the outcome.

APPENDIX A

Statutory provisions and authorities

Causation of injury is addressed under Part 1 of the Guidelines dealing with permanent impairment:

Clause 1.6 of the Guidelines refers to the definition of causation found in the glossary at page 316 of the AMA4 Guides as follows:

“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

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.”
The Guidelines then say at cl 1.7:

“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the 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.”.

Although these do not relate directly to assessing causation in treatment disputes, they carry weight as indicating relevant considerations. Further, ss 5D and 5E of the Civil Liability Act 2002 apply to the MAC Act regarding causation.

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.”

The Civil Liability Act 2002 (the CL Act) applies to the MAC 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.

In undertaking an assessment of causation in Ms Farr’s case, the Panel must consider any pre-existing or subsequent conditions to the conditions or particular parts of his body she says were injured in the accident. The Panel found that did not apply in this case.

Method of assessment

Although this is a treatment dispute the Guidelines methods for evaluating impairment include points which are applicable to assessing causation The Guidelines provide for the evaluation of impairment which cl 1.18 explains to be done in three stages:

“1.18.1 a review and evaluation of all the available evidence including:

• medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)

• medico-legal reports

• diagnostic findings

• other relevant evidence

1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and

1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.”

The assessment considers all of the material that has been put before the Panels by both parties, the information provided by Ms Farr at her medical examination and the clinical findings and the clinical judgment of the Medical Assessors and the input from the legal member on the Panel.

Dispute resolution

Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by this Review Panel.

Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).

If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B)).

The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).

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.

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.

[2024] NSWPICMP 768

11 November 2024