Gunaweera Mudalige v AAI Limited t/as GIO
[2025] NSWPICMP 739
•24 September 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Gunaweera Mudalige v AAI Limited t/as GIO [2025] NSWPICMP 739 |
CLAIMANT: | Dulka Gunaweera Mudalige |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 24 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute; review of medical assessment; dispute as to whether treatment and care is reasonable and necessary and causally related to the motor accident; injury to lumbar spine; issue of causation in respect of elbows which the claimant alleges were injured due to her altering her activities on account of back injury; context of pre-existing epidondylitis in the elbows; closed period of commercial domestic assistance between June and November 2023 in dispute; Held – medical certificate confirmed; elbow injuries not caused by the motor accident; right elbow condition being the main complaint during the relevant period; treatment not reasonable and necessary and not causally related to the injuries caused by the motor accident. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued pursuant to s 7.26(7) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Clive Kenna dated 18 March 2024. |
STATEMENT OF REASONS
BACKGROUND
Ms Dulka Gunaweera Mudalige (the claimant) is a 43-year-old woman who alleges injury caused by a motor accident which occurred on 9 December 2022.
A claim was lodged upon AAI Limited t/as GIO (the insurer) who is the compulsory third party insurer of the vehicle considered at fault. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The subject issue in dispute is whether certain treatment is causally related to the motor accident and reasonable and necessary is in dispute between the parties. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
The specific treatment and care in dispute, and referred for assessment is:
“domestic assistance (domestic help and home cooking) services between June and November 2023.”
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Clive Kenna dated 18 March 2024. The Medical Assessor certified that the referred treatment and care of “domestic assistance (domestic help and home cooking) services between June and November 2023” did not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances.
THE REVIEW
An application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant. In a determination dated 3 June 2024, the President’s delegate referred the medical assessment to 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.[2]
[2] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[3]
[3] 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.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
The Panel has held a number of preliminary conferences. Directions were issued requiring the parties to indicate whether they agreed with the Panel’s preliminary view that a re-examination of the claimant is not required as part of the review of the medical assessment. Both parties indicated that they had no objection to their being no re-examination.
Following confirmation of the parties’ positions, the Panel reconvened for a final preliminary conference on 12 August 2025 where the evidence was discussed.
LEGISLATIVE FRAMEWORK
Pursuant to Part 3 of the MAI Act the insurer is liable for the payment of statutory benefits, including treatment and care benefits as set out under Division 3.4.
Section 3.24(2) of the MAI Act provides that:
“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.”
The test of whether the subject treatment and care is reasonable and necessary is generally considered a stricter test than the corresponding test in the New South Wales workers compensation benefits scheme that requires a worker to establish that the treatment is “reasonably necessary”.[6]
[6] Section 60 of the Workers Compensation Act 1987.
The cases relating to the workers compensation scheme, whilst not binding, provide some guidance. In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
The words “did not relate to the injury resulting from the motor accident” contained in s 7.26 of the MAI Act require the Panel to determine the issue of causation of the subject injury before determining whether the treatment relates to that injury.
The Panel has considered the case of AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 (Phillips), when determining the issue of whether the treatment is related to the injury caused by the motor accident. The case of Phillips involved a claimant involved in three separate motor accidents and the Court, dealing with the issue of causation for surgical treatment found at [28] and [29]:
“The requirements in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
I accept the plaintiff’s submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
Guidelines
Causation of injury is addressed from cl 6.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[7] Clauses 6.5 and 6.6 provide:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
[7] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act),[8]
[8] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Medical Assessor Kenna examined the claimant on 1 February 2024. He took a history that the claimant resides in Campbelltown with her husband and one child. The claimant acknowledged a prior minor motor accident in 2018, however no injuries occurred.
The claimant told the Medical Assessor that she works in procurement for a carpet manufacturer and has done this for some 20 years. She said that she lost two weeks of work after the accident and returned to work on normal duties.
The Medical Assessor noted that the treatment in dispute specifically involves payment of domestic cleaning to a Ms Purnima Umayantha from 17 June 2023 to 18 November 2023 at a total cost of $11,440.
The Medical Assessor took the following history in respect of the subject motor accident:
“In her accident report form, she notes she was walking on a footpath when a ute came off the road and almost ran her over, “close to us and almost hit my daughter’s bicycle.” In the unexpected incident, she states she ran towards her daughter and then twisted her leg and felt pain in her back and left hip.
When the unusual incident occurred, she states she ran, then fell twisting her back, and the impact of the car was that a tree was dislodged from the earth. But she was not hit by the car.
In the background to this, her daughter jumped off the bike and the ute hit her bicycle, dragging it along for about two metres before stopping, but again the daughter wasn’t hit by the car.
Hence, the only injury that occurred at the time was to her lower back from the fall. The elbows weren’t affected or struck.
Police and ambulance attended.
Her husband came and took her home.
She didn’t wish to attend hospital.
That initially her complaint was back pain.”
In terms of current symptoms, the claimant complained of central low back pain with a little bit of pain over the left buttock. He also states:
“she also complained initial [sic] of quite severe medial epicondylitis bilaterally but acknowledges that the left elbow substantially improved but she remained symptomatic in part pertaining to the right on a background of a prior history.”
On clinical examination of the lumbar spine the Medical Assessor found no muscle guarding or spasm and a full range of motion and no asymmetry present. There was no neurological deficit evidence in either lower limb. It was also noted that any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
In respect of the upper extremities, the Medical Assessor states:
“she was asymptomatic pertaining to any palpation over the left medial epicondyle but there was some related tenderness involving the medial epicondyle of the right elbow, but no referral of symptoms into the distal forearm. No indication of the ulnar nerve. There was no flexor contracture.”
In his reasons, the Medical Assessor noted that the claimant did not incur a direct injury to the elbows and had significant pre-existent history, not only symptomatically but radiologically. The claimant apparently stated that she had a habit of taking weight off her central back pain by means of her elbows taking the strain.
He noted that at the time of his examination the claimant had regained full functional mobility of her back and both elbows, although there was some residual tenderness in respect of the right elbow. The Medical Assessor concluded that this relates to the pre-existing injury and not the motor accident.
The Medical Assessor noted that the insurer had paid for a number of “cleans” from the subject provider, however, unbeknownst to the insurer the claimant continued with the service from June 2023 to November 2023.
The Medical Assessor took a history that the claimant continued to receive the cleaning service from the same company but less frequently, where it had been once every 10 days it was now fortnightly.
In his concluding remarks the Medical Assessor states,
“from that perspective, I believe post 26 weeks there is inappropriateness of service but has continued as a result of the claimant’s own volition. She is no longer really experiencing left elbow pain. The right elbow is due to pre-existent condition and she has a pre-existent lumbar spondylosis with a significant past history.”
SUBMISSIONS
Claimant’s submissions for review dated 15 April 2024
The claimant submits that it is clear from the Medical Assessor’s reasons that he has not adequately taken into account the claimant’s medical condition at the time for which domestic assistance was claimed, and instead relied on her current clinical presentation as decisive on whether the care was reasonable and necessary.
Insurer’s “statement of issues in dispute” dated 26 April 2024
The insurer refutes that the Medical Assessor applied the incorrect test. It is noted that the Medical Assessor considered the various radiological reports and medical evidence that suggested complaints in the right elbow and lumbar spondylosis pain were symptomatic prior to the motor accident.
In addition, the Medical Assessor took into consideration evidence from the claimant’s rehabilitation provider who did not recommend ongoing cleaning beyond 26 weeks.
SUMMARY OF RELEVANT DOCUMENTATION
The application for personal injury benefits (claim form) dated 19 December 2019 confirmed the circumstances of the accident and the claimant described twisting her leg and feeling pain in the back and left hip.
An allied health recovery request (AHRR) dated 2 February 2023 documented left sided lower back strain.
A report from physiotherapist, Gaven Wiliams dated 14 April 2023 recorded the claimant attending for management of lower back pain and bilateral medial elbow pain. A history of elbow pain was noted which was aggravated by having to manage the back pain.
Activities of Daily Living Assessment Report – Rehab Management dated 24 March 2023
The company were asked to assess the claimants’ functional performance and provide recommendations of personal self-care, domestic and general home maintenance activities in and around the home.
The authors noted the claimant resided in a five bedroom, three bathroom double story home. Following observing the claimant, and taking a history of complaints and restrictions, it was concluded that ongoing rehabilitation services was recommended to assist the claimant with rehabilitation and recovery process. The claimant was noted to be functionally restricted from performing pre accident activities of daily living (ADL). A recommendation for provision of short term assistance in the form of domestic assistance of three hours weekly. Some basic equipment items were also recommended to assist the claimant (such as a long handled bath sponge).
Medical assessment of Medical Assessor Jonathan Herald dated 6 October 2023
Medical Assessor Herald examined the claimant on 25 August 2023 in the context of a threshold injury dispute. He determined that a soft tissue injury to the lumbar spine and both elbows was a threshold injury for the purposes of the MAI Act.
In respect of current symptoms, the Medical Assessor records the claimant as experiencing right elbow medial-sided pain.
The claimant was noted to be 80kg and a height of 152cm.
On examination of the lumbar spine, the claimant was noted to have mild tenderness over the lumbar spine but a good range of motion with forward flexion to 75% of the range and lateral flexion to 75% of the range or below her knees to her mid-thigh level. Extension was limited to 50% of range and she had a normal neurological examination to the lower limbs which were intact to tone, power and reflexes.
In respect of the elbows, the Medical Assessor found right elbow tenderness over the medial epicondyle and positive medial epicondyle shear test. The left elbow had a negative medial epicondyle shear test, and the elbow was noted to have otherwise a good range of motion.
In his conclusions, the Medical Assessor stated the claimant had features of medial epicondylitis in both elbows and aggravation of underlying lumbar spondylosis. Her symptoms were noted to be then predominantly related to the right medial epicondylitis, although there were flareups of medial epicondylitis affecting both elbows and her lumbar spine over the previous year or so prior to the motor accident.
The Medical Assessor noted the following summary of radiological and medical imaging that was brought to the assessment:
· 20 April 2019 – ultrasound left shoulder – tendinopathic change involving the supraspinatus;
· 14 November 2019 – MRI scan right elbow – mild common flexor origin tendinosis with a tiny interstitial tear and some features of ulnar nerve thickening as it enters the cubital tunnel which may represent neuritis;
· 1 March 2022 – MRI scan lumbar spine – mild lumbar spondylosis;
· 4 April 2022 – ultrasound left hip – trochanteric bursitis;
· 7 October 2022 – ultrasound right elbow – common flexor origin thickening consistent with medial epicondylitis;
· 24/10/2022 – ultrasound left elbow – common flexor origin tendinosis with medial epicondylitis
· 7 January 2023 – ultrasound left elbow – common flexor origin tendinosis with medial epicondylitis;
· 6 April 2023 – MRI scan lumbar spine – lumbar spondylosis, and
· 22 June 2023 – ultrasound right elbow – mild flexor tendinosis.
General practitioner (GP) records – St Andrews Medical Centre
The file includes a report of Macarthur Physiotherapy dated 14 April 2023. It states the claimant attended for physiotherapy,
“…for the management of low back pain and bilateral medial elbow pain. The lower back pain is related to an incident in December 2022. Dulka has a history of elbow pain which was aggravated by her having to manage her back pain.”
The author of the report concluded that a full time pre-injury duties return to office based employment was appropriate, on a graded basis.
Dr Nguyen noted on 10 March 2023 a case conference occurred with the rehabilitation provider. A history of the motor accident is recorded. Symptoms arising, besides psychological, include back pain – mainly left sided and occasional mild headaches. Both elbows are noted to involve pain with tenderness at the right lateral epicondyle.
Ongoing consultations include notes of psychological symptoms, back pain and predominantly right elbow pain.
FINDINGS AND REASONS
The Panel has considered the issue of causation in respect of the elbows. There appears to be no controversy on the material that the claimant did not suffer a direct injury to the elbows as a result of the accident. The claim form mentions an injury to the lower back and hip.
The material demonstrates a clear pre-existing history of bilateral elbow conditions. Approximately two months prior to the accident radiology confirmed epicondylitis in both elbows.
At the time of his examination in February 2024, Medical Assessor Kenna, noted that the claimant had retained full functional mobility in the back and both elbows. The Panel, acknowledges, however that the relevant period in dispute is between June and November 2023. It is relevant that Medical Assessor Herald, who examined the claimant as part of a threshold dispute, did so during the relevant period, in August 2023. He found features of medial epicondylitis in both elbows and aggravation of underlying lumbar spondylosis. He also noted that the symptoms at that stage related predominantly to the right medial epicondylitis. Whilst he did not include any specific reasoning on the issue of causation, he did comment that there were flareups of the medial epicondylitis affecting both elbows and the lumbar spine over the previous year.
Accordingly, on the evidence, the Panel finds that the predominant issue affecting the claimant’s functional capacity at the relevant time relates to the right medial epicondylitis. This is a documented pre-existing condition. The Panel notes the claimant’s assertion that she aggravated this condition by altering her activities on account of the lumbar spine injury. However, the Panel is not satisfied, on the balance of probabilities, that minor alterations to the claimant’s activities gives rise to an injury to the elbows causally related to the motor accident. The claimant had symptoms in the weeks leading up to the motor accident in both elbows to the point that radiology was ordered. The Panel finds that it is more likely than not that the claimant’s elbow symptomatology at the relevant period was not altered by the motor accident to any material degree.
The Panel finds that the motor accident is more likely than not to have not caused any material contribution to the elbow symptomatology.
The Panel also finds that on the basis of the clinical findings of Medical Assessor Herald that were recorded during the relevant period, the lumbar spine injury is not such that it would deem domestic assistance to be reasonable and necessary.
CONCLUSION
The certificate of Medical Assessor Kenna is confirmed.
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