Insurance Australia Limited t/as NRMA Insurance v Foti
[2023] NSWPICMP 395
•16 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Foti [2023] NSWPICMP 395 |
| CLAIMANT: | Dominic Foti |
INSURER: | Insurance Australia Limited t/as NRMA Insurance on behalf of the Nominal Defendant |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Trudy Rebbeck |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 16 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; medical assessment of treatment provided and to be provided by Medical Assessor (MA) Wijetunga and insurer’s review under section 7.26; claimant seriously injured in collision with a tree in September 2018; claimant sustained multiple orthopaedic injuries and severe internal injuries; claimant commenced twice weekly physiotherapy in May 2019; two years later a request for further physiotherapy was rejected by the insurer; at time of assessment claimant had paid for his own physiotherapy treatment in the sum of nearly $6,500; claimant sought a determination that the treatment provided was related to the injuries and reasonable and necessary to help control his pain and that weekly physiotherapy indefinitely was also reasonable and necessary; insurer disputed all treatment as not related and not reasonable and necessary; Held – physiotherapy provided or to be provided is related to the lower limbs and lower back injured in the accident; discussion about principles of physiotherapy treatment which is to improve strength and functionality; physiotherapy is not recommended for pain management beyond the acute phase of injury; some physiotherapy provided to the date of the review is reasonable and necessary; some treatment for a further year reasonable and necessary; weekly physiotherapy treatment indefinitely is not reasonable and necessary; certificate of MA Wijetunga revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Wijetunga dated 5 September 2022. 2. Certifies that the disputed physiotherapy provided by Mr Joseph Foti to Mr Dominic Foti to date, and the disputed physiotherapy to be provided, is related to the injuries caused by the accident for the purposes of s 3.24 of the Act. 3. Certifies that the following physiotherapy treatment provided by Mr Joseph Foti to Mr Dominic Foti is reasonable and necessary in the circumstances for the purposes of s 3.24 of the Act: a. from 9 June 2021 to 8 June 2022 – one attendance each fortnight, and b. from 9 June 2022 to 8 June 2023 – one attendance each month. 4. Certifies that from the date of this Review, the following physiotherapy is reasonable and necessary in the circumstances: a. one review to develop an exercise program; b. six reviews (once per month for six months), and then c. two further reviews (one review every three months for six months) after that. |
STATEMENT OF REASONS
INTRODUCTION
Dominic Foti was involved in a motor accident on 24 September 2018. He was driving on a three-lane highway when his vehicle left the road and collided with a tree. He says he left the road because a car in the left-hand lane attempted to merge into his lane.
Mr Foti sustained multiple serious injuries in the accident and made a claim for statutory benefits against the Nominal Defendant as the vehicle which attempted to merge into Mr Foti’s lane has not been identified. NRMA is acting on behalf of the Nominal Defendant.
A medical dispute about physiotherapy treatment (provided and to be provided) has arisen in connection with that claim and Mr Foti referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Wijetunga determined on 5 September 2022 that the disputed treatment was related to the injuries caused by the accident and was reasonable and necessary in the circumstances.
NRMA lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 24 November 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 9 February 2023 the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK AND RELEVANT CASE LAW
General
Mr Foti’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under division 3.3, and
(b) treatment and care benefits under division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Unlike the previous scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The only mechanism for the claimant to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim. The Panel understands that Mr Foti may have resolved his damages claim. While that claim may therefore be at an end, as Mr Foti sustained more than minor (now threshold) injuries, his entitlement to treatment and care statutory benefits continues.
Section 3.24 provides as follows:
“(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 -
(c)the reasonable cost of treatment and care,
…
(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.”
Causation of injury
The insurer is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”.
This clearly requires the Panel to determine the injuries resulting from or caused by the accident (if there is a dispute about it) before determining whether the treatment relates to those injuries.
Treatment related to the injury resulting from the accident
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[2] where the test of the relationship between surgical treatment and an accident was determined in a matter where the Motor Accident Compensation Act 1999 applied and where the claimant had sustained injury in three motor accidents. While a slightly different test applied under the 1999 legislation, the case remains relevant on the issue of “relationship”.
[2] [2018] NSWSC 1710.
The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. 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’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery.[3] 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.”
[3] Emphasis added.
Reasonable and necessary
In order for the insurer to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. The “reasonable and necessary” test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 his Honour Justice Grove in Clampett v WorkCover Authority of NSW,[4] stated:
“[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.”
[4] [2003] NSWCA 52 (Clampett).
In Diab v NRMA Ltd[5] 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.
[5] [2014] NSWWCCPD 2 (Diab).
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Mr Foti’s physiotherapy is “reasonable and necessary”.
In the circumstances
Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. The question of the relationship between accident and treatment is dealt with in the consideration of whether the accident caused the injury and the disputed treatment’s relationship to that injury, Therefore it may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury or a condition but if the injury or condition was not caused by the accident the claimant will not be entitled to statutory benefits for the treatment of that injury or condition.
The words “in the circumstances” in the context of whether a particular treatment is “reasonable and necessary” must therefore refer to the particular circumstances of the claim and the claimant in the proceedings before the Panel. As the members of another Panel said in the matter of Allianz Australia Insurance Limited v Vella:[6]
“That may mean that a particular claimant has subjective requirements that may mean that some treatment for a specific injury is reasonable and necessary whereas the same treatment for the same condition of a different claimant may not satisfy the test”.
[6] [2021] NSWPICMP 214.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “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 (Entitlement to statutory benefits for treatment and care)”.
ASSESSMENT UNDER REVIEW
Medical Assessor Wijetunga examined the claimant on 31 August 2022 and issued her certificate with reasons on 5 September 2022.
The Medical Assessor says she was referred the following medical assessment matters to determine:
(a) whether the request for weekly physiotherapy to the claimant's lumbar spine and both legs relates to the injury caused by the motor accident;
(b) whether the request for weekly physiotherapy to the claimant's lumbar spine and both legs is reasonable and necessary in the circumstances;
(c) whether the past physiotherapy to the claimant's lumbar spine and both legs relates to the injury caused by the motor accident, and
(d) whether the past physiotherapy to the claimant's lumbar spine and both legs is reasonable and necessary in the circumstances.
Medical Assessor Wijetunga takes a history of the car accident. The claimant was driving in the middle lane of a three-lane highway. The claimant says a car on his left steered into his lane and in order to avoid a collision with that car he turned to the right mounted the median strip and collided head on with a tree.
Medical Assessor Wijetunga records that the claimant was unconscious, taken to Westmead Hospital and was in intensive care for three weeks, spent a further three weeks at the hospital then had six to seven weeks of rehabilitation. The injuries listed by the Medical Assessor were:
(a) internal bowel injuries;
(b) T10 vertebral fracture;
(c) left ankle fracture;
(d) patella fracture;
(e) right tibial plateau fracture;
(f) femur fracture, and
(g) right ulna shaft fracture.
The claimant’s current complaints reported by Medical Assessor Wijetunga included:
(a) right arm pain – intermittent a few times per week;
(b) lumbar spine – pain across the lower back and pins and needles in the feet and a feeling of his muscles seizing up which were relaxed by physiotherapy;
(c) co-ordination – difficulties with coordination and instability and multiple falls, and
(d) right knee – difficulties with bending and lack of strength.
The claimant said he took Panadol three times a day, attends physiotherapy regularly, funds his own personal trainer (who communicates with his physiotherapist). He says the physiotherapy provides relief and improves his status for a few days.
After summarising the evidence Medical Assessor Wijetunga determined the treatment was related to the injuries caused by the accident for the following reasons:
(a) Mr Foti has a serious accident sustaining injuries to both legs, a fractured thoracic vertebra and it is medically plausible he sustained injury to his lumbar spine as well;
(b) he continues to experience pain in his lower back and legs in particular the right leg;
(c) physiotherapy mobilises his joints and assists in improving mobility and the claimant’s functioning, and
(d) studies show there is good evidence for exercise programs and ongoing physiotherapy for chronic lower back pain.
Medical Assessor Wijetunga then said physiotherapy once a week for the next five to six years would be reasonable.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer provides a useful chronology of the medical dispute at [1]. The insurer then submits at [2]-[7] that the Medical Assessor breached procedural fairness by relying on medical literature not brought to the insurer’s attention and by not seeking comment or submissions from the insurer.
The insurer submits at [8]-[10] that the Medical Assessor did not reveal her path of reasoning between the literature (which supported active programs with physical activity and exercise) and her decision to allow ongoing physiotherapy which consisted of passive mobilisation and stretching.
The insurer then submits at [12]-[18] that the dispute between the parties was about proposed physiotherapy treatment the subject of an allied health request (AHHR) number 8. The claimant had apparently provided invoices totalling $6,424 for all physiotherapy provided as at 25 May 2022. The decision by the Disputes Officer to amend the scope of the dispute between the parties to include all physiotherapy treatment refused by the insurer and paid for by the claimant and into the future was said by the insurer to be ultra vires and the insurer was denied procedural fairness by not being asked for comment or submissions. The insurer also says the framing of the dispute concerning “Weekly physiotherapy to the claimant’s lumbar spine and both legs” is not a request for treatment that satisfies the definition under the MAI Act and provides a “blank cheque” for all future physiotherapy.
The insurer says at [19] that the President’s delegate should consider the certificate issued by Medical Assessor Wijetunga as “ultra vires and void” and the matter should be referred to a new disputes officer to be referred again to a new and different Medical Assessor.
If the matter is referred to the review panel the insurer says at [22] that the only matter in dispute is the physiotherapy contained within the eighth allied health recovery request (AHRR 8).
The insurer, commencing at [25] provides submissions as to whether the treatment is reasonable and necessary saying:
(a) that the treatment provides only temporary relief;
(b) the claimant is not being empowered to manage his own condition but is becoming dependant on allied health services;
(c) the provision of 158 physiotherapy services does not conform with best evidence;
(d) there is no literature that supports long term passive forms of treatment;
(e) there has been no functional benefit in the treatment, and
(f) there are no goals focused on improving functional benefits.
Claimant’s submissions
The claimant’s submissions begin at [3] with an outline of the disputation between the parties over minor injury, liability, treatment and domestic assistance.
The claimant notes that the Nominal Defendant has relied on a report from its expert, Dr Keller saying, “further physiotherapy … will not provide further benefit”. The claimant says the report does not say that but that he did express the view Mr Foti’s treatment needs were related to the accident.
The claimant says at [8] he wants to be refunded the physiotherapy expenses he has paid and, to avoid further disputes, a determination that future treatment is reasonable and necessary.
The claimant notes at [29] that the Nominal Defendant has not taken issue with causation and that the real issue in dispute between the parties is the reasonableness and necessity of the treatment.
The claimant concedes at [32] the breach of procedural fairness by the Medical Assessor.
The claimant argues at [33] that the Commission can determine the totality of the past and future physiotherapy not just the eight sessions within AHHR 8.
On the jurisdiction point, the claimant points out at [46] that at no time before Medical Assessor Wijetunga undertook her assessment, did the insurer raise any concerns with the Commission or the claimant about the scope of the dispute. The claimant also says at [47] it notified the Nominal Defendant of his intention to include further expenses and served the supporting invoices on 28 July 2022.
The claimant says at [57] that the Commission has jurisdiction to determine all of the disputes about physiotherapy past and future and, “should not have to proceed through a 12 month long treatment dispute at the PIC each time his physiotherapist submits a new AHHR”.
The claimant argues that the literature reviewed by the insurer does not apply to the claimant’s case because of the types of cases excluded from the studies (persons with fractures such as Mr Foti) or the type of pain (non-specific when Mr Foti has specific pain).
Procedural matters
The insurer has lodged a bundle [A1] comprising its submissions regarding a re-examination [AD2] and 1,300 pages of documents.
The claimant has lodged a bundle [AD3] comprising its submissions and 125 pages of documents.
The Panel met on 28 March 2023 and reported to the parties on 29 March 2023. The Panel noted the dispute between the parties as to the scope of the amount of physiotherapy in dispute (the AHHR 8 physiotherapy versus the $6,424 worth claimed by Mr Foti). The Panel advised the parties:
“[4] The Panel is of the view it has no power to interfere with or overrule the decision of any member of [the Commission’s] staff who may have amended the scope of the original treatment dispute. A medical assessment has been undertaken, an application for review has been lodged and a delegate of the President has determined that application. If the insurer seeks to set aside any of the decisions made in the course of the original proceedings, then the insurer should take whatever action the insurer considers necessary to do so.
[5] The Panel is proceeding on the basis that it is undertaking an assessment de novo of the medical assessment matters that were assessed by Medical Assessor Wijetunga.
[6] Medical Assessor Wijetunga listed the medical assessment matters as follows:
(a)whether the past physiotherapy to the claimant's lumbar spine and both legs relates to the injury caused by the motor accident;
(b)whether the past physiotherapy to the claimant's lumbar spine and both legs is reasonable and necessary in the circumstances;
(c)whether the request for weekly physiotherapy to the claimant's lumbar spine and both legs relates to the injury caused by the motor accident, and
(d)whether the request for weekly physiotherapy to the claimant's lumbar spine and both legs is reasonable and necessary in the circumstances.”
As the claimant had suggested, in his submissions, there was no issue that the physiotherapy in issue is related to the injuries caused by the accident, the Panel requested the insurer confirm this is the case and whether the real issue in dispute between the parties is the amount of physiotherapy (provided or to be provided) that is reasonable and necessary.
The Panel did not request any further documents and advised the parties about the re-examination.
Insurer’s final submissions
The insurer advised the Panel at [2] that causation was in issue and that at [3] the test of causation for treatment requires a two-fold determination:
(a) would the subject accident have made at least a material contribution to the need for physiotherapy being requested, and
(b) whether the physiotherapy requested would not have arisen but for the occurrence of the subject accident.
The insurer submits at [4] that “the extent of requested treatment is not causally related to the effect of the subject accident”.
The insurer also says at [5] that reasonableness is distinct from necessity, and both must be determined separately and at [6] that the treatment in AHRR 8 was not reasonable, was not necessary and was not reasonable and necessary.
The insurer says that any request for payment of past physiotherapy after AHRR 8 is also not reasonable, not necessary and not reasonable and necessary and that the “indefinite weekly passive physiotherapy sessions” do not have any functional benefit and are not reasonable, not necessary and not reasonable and necessary.
REVIEW OF THE EVIDENCE
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[7] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[7] [2022] NSWSC 1079.
The Panel has before it over 1,500 pages of documents.
The claimant’s documents include a decision relevant to liability and fault, court documents and the correspondence concerning the requests for treatment and the insurer’s refusal to provide and pay for it. The Panel has reviewed them but is not of the view these documents need to be referred to further as they are not strictly relevant to the issues in dispute.
The insurer has provided a thousand pages of hospital notes, multiple certificates of capacity and reports of radiology. While the Panel notes the issue of causation and has reviewed the hospital records, the Panel is not of the view that these documents need to be referred to further as the Panel has a clear understanding of the serious nature of the injuries sustained by the claimant from the discharge summaries and the medico-legal reports.
Claim form and claim documents
The claimant’s application for personal injury benefits (claim form)[8] was signed and dated 30 September 2018. The claimant says as he was driving west on the M4, he swerved to avoid a car entering his lane and in doing so lost control and came off the road and hit a tree.
[8] R2 at page 60 of the insurer’s bundle.
He says he sustained fractures of the left ankle, right thigh, right knee and right shin, right arm and a ruptured bowel. The Panel notes the list of injuries provided in submissions to the Commission[9] also allege a neck injury, right elbow and forearm fractures, T10 thoracic fracture, right femur fracture, right knee and tibia fracture. None of these injuries appear to have been disputed by the insurer.
[9] Page 13 of AD3.
Mr Foti’s application for damages claim form adds nothing further to the Panel’s understanding of the matter and is dated 16 June 2020.[10]
[10] R3 at page 66 of the insurer’s bundle.
The claimant sets out the dispute as follows:
(a) on 6 August 2021 a request for treatment was made by the claimant’s treating physiotherapist in AHHR 8;[11]
(b) on 20 August 2021, NRMA on behalf of the Nominal Defendant declined to pay for the treatment;[12]
(c) on 6 September 2021 the claimant’s treating doctor requested approval for continued physiotherapy including “maintenance physio for the claimant’s right leg and lower back” ;[13]
(d) on 13 October 2021 the claimant’s wife received the Nominal Defendant’s email declining the treatment requested by the GP;[14]
(e) on 14 October 2021 the claimant’s solicitor sought an internal review of the insurer’s decision to deny physiotherapy treatment on behalf of his client,[15] and
(f) on 28 October 2021 the claimant was advised of the outcome of the internal review.[16] The Nominal Defendant confirmed their decision to decline liability.
[11] Pages 56 and 111 of AD3.
[12] Page 60 of AD3 (and incorrectly dated 22 November 2021).
[13] Page 80 of AD3
[14] Page 81 of AD3.
[15] Page 82 of AD3.
[16] Page 99 of AD3.
The claimant has provided a statement dated 16 November 2021 concerning his examination with Dr Keller[17] and other matters. As the Nominal Defendant relies on Dr Keller’s report this statement is relevant to the Panel. In this statement the claimant says:
(a) the insurer had not stopped payment for treatment expenses while fault and liability were being decided [2]. The insurer paid for a hernia operation [3] and physiotherapy which commenced in about September 2020 [4];
(b) the claimant’s physiotherapist is Mr Joseph Foti, a registered physiotherapist and relative of the claimant and the insurer has been paying for this treatment [4];
(c) the treatment was for Mr Foti’s low back, hip and legs [5];
(d) Mr Foti saw Dr Keller on 15 October 2020 [6] and the examination lasted for about 30 minutes [7]. He said it was “very strange”. His wife was not allowed to speak and Dr Keller “was extremely abrupt and rude to her”. Dr Keller asked him yes / no type questions, would not let Mr Foti elaborate and there “was absolutely no discussion with Dr Keller about my future treatment”;
(e) in February 2021 his long-term GP went on maternity leave and he consulted a new doctor, Dr Munasinghe who requested the insurer pay for weekly physiotherapy for maintenance of his right leg, low back and pain secondary to his multiple fractures, and
(f) he says at [18] that he needs:
“ongoing episodic physiotherapy to maintain manageable levels of pain and movement. I find that if I do not have physiotherapy, I become stiff and tighten up and I have difficulty standing, walking ad sitting. I find that my pain increased, and I have difficulty sleeping.”
[17] Page 17 of AD3.
The claimant’s solicitor (and the claimant in his statement) note that Dr Keller expressed the view the claimant’s whole person impairment (WPI) was 2% however the claimant’s expert was of the view the degree of the claimant’s WPI was 40% and the insurer conceded during the common law claim that the claimant had an entitlement to non-economic loss (NEL).
The claimant provided a further statement dated 15 July 2022:[18]
(a) his GP has returned from maternity leave and has returned to the involvement with his treatment including physiotherapy;
(b) the physiotherapy lasts for 45 minutes to an hour and consists of mainly remedial massage directed at the lower back, hips and legs as well as specific exercises targeting areas of weakness;
(c) when he stopped physiotherapy for about three weeks he found his low back, hips and legs became stiffer and more painful, he could not sleep;
(d) the claimant is paying for his own physiotherapy;
(e) Dr Gupta wants him to continue having physiotherapy and he feels he needs it;
(f) he cannot have the treatment at home because it is special remedial physiotherapy and massage, and
(g) he wants to be paid the cost of the physiotherapy he has paid for and the cost of ongoing physiotherapy once every two weeks into the future.
[18] Page 121 of the claimant’s bundle.
Request for physiotherapy and dispute related correspondence
The AHRR 8 request for physiotherapy[19] is dated 9 June 2021. This request:
[19] Page 56 of AD3.
(a) lists the claimant’s injuries as:
(i)right femoral shaft fracture;
(ii)right patella fracture;
(iii)right tibial plateau fracture;
(iv)right ulna shaft fracture;
(v)left ankle fracture (Weber A);
(vi)T10 vertebral body fracture;
(vii)small bowel ischemia leading to an emergency laparotomy on the 24/09/18;
(viii)grade 1-2 Renal laceration;
(ix)anastomotic leak;
(x)deep venous thrombus right calf, and
(xi)peristomal collection.
(b) refers to “multiple surgeries” including an emergency laparotomy, various operations to insert nails and screws into his lower limb fractures, further laparotomy and hernia repair surgery;
(c) notes the claimant has restricted motion in some neck, thoracic and lumbar spine movements as pain and muscle tension / joint stiffness;
(d) records right hip, right knee and right ankle restrictions and end of range stiffness and pain and some end of range stiffness and pain in the right elbow;
(e) says the claimant has “significant” muscle deconditioning affecting the ability to function and enjoy life, significant muscle tension and significant limitation in prolonged activities, and
(f) requested two sessions a week for four weeks (a total of eight sessions at a cost of $1,574.40).
The insurer declined liability to pay for further physiotherapy in a letter dated 20 August 2021[20] because “further physiotherapy treatment will not provide further benefit based on Dr Keller’s medical assessment report”. In an email dated 23 August 2021[21] the insurer then said, “based on the physiotherapy records attached we note that Mr Foti has not had any further function improvements with physiotherapy for the last few months and that at this stage his treatment provider should have assisted the claimant with a self-managed exercise program.” The Nominal Defendant also suggested that as WPI had been assessed, the claimant’s injury had stabilised and his function “would not improve with or without further treatment”.
[20] Page 60 of the claimant’s bundle. Although dated 22 November 2021 this appears to be the date the letter was printed.
[21] Page 66 of the claimant’s bundle.
The invoices relevant to the dispute[22] commence with a one-hour ($196.80) consultation on 9 June 2021 treating three areas of the body and ends with a session on 29 June 2022 treating one area only for $80.
[22] Page 115 of AD3.
The total sum of the treatment in dispute is $6,424 as follows:
(a) invoice 2900 (9 June – 30 June 2021) $984
(b) receipt summary (7 July 2021 – 25 May 2022) $5,040
(c) account summary (1 June – 29 June 2022 $400.
Treating records and reports
Dr Munasinghe wrote a very short request to the claims officer acting for the Nominal Defendant at NRMA dated 6 September 2021 requesting “once a week maintenance physiotherapy for Dominic for his ongoing right leg and lower back pain”.
Dr Munasinghe has provided a further letter “to whom it may concern” dated 19 November 2021.[23] He confirms he has referred the claimant for physiotherapy “until he gets back to his baseline mobility which means to do his daily activities as usual”. He says it is difficult to anticipate how many sessions he will need but for at least a total of six months. He needs to be taught the correct exercises and techniques and that if he does not have physiotherapy he will severely decondition.
[23] Page 106 of the claimant’s bundle.
Mr Joseph Foti, the physiotherapist, provided a letter to the claimant’s solicitor[24] which is undated he says:
[24] Page 96 of the claimant’s bundle.
(a) he commenced treating the claimant on 16 March 2020;
(b) he has treated the claimant for all of his injuries;
(c) in respect of AHRR 8 Mr Foti was treating the claimant’s lumbar spine, right hip, right knee and both ankle joints including manual therapy;
(d) treatment included manual therapy, joint mobilisation and supervised exercise therapy;
(e) the aim of the treatment was to reduce pain, stiffness and tension as well as strengthening noting that the claimant experiences flare ups of his pain;
(f) he was aiming to improve joint range of motion by 20-30% in all areas and improve the walking/ sitting and standing tolerance from 30 to 45 minutes;
(g) he has not reported to the claimant’s GP since the claimant began paying for the physiotherapy himself;
(h) the purpose of the treatment now is to increase the claimant’s functional capacity;
(i) the claimant has attempted home based exercises which have failed, his pain increase, his function deteriorates;
(j) Mr Foti needs ongoing physiotherapy in order to:
(i)keep pain at a manageable level;
(ii)improve walking, standing and sitting tolerances;
(iii)improve the ability to squat and lift heavier objects;
(iv)improve ability to tolerate loading (such as stair climbing), and
(v)halt decline if physiotherapy is stopped.
Dr Gupta wrote to the claimant’s solicitor about the ongoing approval for physiotherapy saying:
“…following his MVA on 24/9/2018 he has had ongoing lumbar spine and leg pain that hs benefitted from physiotherpay. He will benefit from weekly physiotherpay for the next 5- 6 years as per the independent medical examination. I therefore support and agree with [Medical Assessor] Wijetunga’s opinion that Mr Foti needs ongoing physiotherpay.”
Medico-legal reports
Dr Berry provided a report to the claimant’s solicitor dated 30 September 2020 and deals primarily with the claimant’s internal injuries. He noted that the claimant was having physiotherapy twice a week “in order to try and regain his function”. He assessed the claimant’s upper digestive impairment at 20% due to urgency and diarrhoea and the loss of 15kg in weight since the accident.
The claimant relies on a report from Dr Todd Gothelf, orthopaedic surgeon dated 28 October 2020.[25]
[25] Page 84 of the insurer’s bundle.
The claimant is reported to have a history of high blood pressure and cholesterol and a cardiac stent implanted in 2012. He had a hernia repair many years ago, back pain in 2000 and keyhole lumbar spine surgery with no additional problems.
Dr Gothelf documents the accident and the immediate post-accident treatment. In terms of current symptoms, the claimant said he had no pain in his right elbow on resting but it hurts when lifting. He had a painful right thigh and leg, mostly around the knee. His mid back is tender, and his left ankle has resolved with very little pain.
He reported having physiotherapy, massage and personal training twice a week which was helping.
Dr Gothelf noted the claimant was 68 weighed 108kg, was 175cm tall and had a body mass index of 35.3 which placed him in the obese range. On examination there was a full range of pain-free cervical spine and upper limb joints with no wasting of the upper limbs. There was some restriction of shoulder motion. There was some restriction in the lumbosacral spine but no dysmetria. The lower limbs had normal power, muscle tone, sensation and reflexes. The hip, knee and ankle movements were said to be full and pain free (although the actual measurement provided suggests there was restriction). There was one centimetre difference between the right and left mid-calf measurements.
He diagnosed:
(a) acute fracture of the superior endplate of T10 with fragment displaced superiorly by 3mm;
(b) slightly displaced fracture seen in the right proximal third of the ulna with no other fracture and no dislocation. Mr Foti underwent surgery for a right ulna open reduction and internal fixation on 26 September 2020;
(c) displaced comminuted fracture of right femoral shaft for which the claimant had a right femur intermedullary nail in surgery on 26 September 2020;
(d) displaced comminuted fracture of the inferior aspect of the right patella for which the claimant had open reduction and internal fixation on 26 September 2020;
(e) minimally displaced fracture of the right tibial plateau. Mr Foti had right tibial plateau percutaneous fixation in surgery on 26 September 2020, and
(f) acute fracture of the inferior tip of the left lateral malleolus (Weber A) which has been treated non-operatively.
He expressed the view the claimant’s WPI was 40% but did not specifically address treatment.
The insurer relies on a report from Dr Andrew Keller, occupational physician dated 16 October 2020. He has a history of the accident consistent with others and of the treatment after the accident. He notes the claimant has been receiving physiotherapy to his back and legs twice a week as well as having a personal trainer and doing regular home exercises.
The claimant reported intermittent lower back pain, constant right knee pain, difficulty controlling his bowels and poor sleep. He reported pain in his right arm with lifting heavy things.
On examination there was mild restricted motion at the wrist, full symmetrical range of motion in the neck and lower back (with pain) and a full range of motion in the hips and knees.
Dr Keller expressed the view there was “no prognosis for a full recovery” and he was restricted from returning to work.
Dr Keller was unable to assess the claimant’s internal injuries and said while he had a 2% impairment only “he has suffered significant injuries to multiple body parts and in my opinion, is genuinely restricted from return to work in any capacity as a result of the subject accident.”
Literature
The insurer has provided three articles on chronic low back pain management and physiotherapy for low back pain.
RE-EXAMINATION FINDINGS
Mr Dominic Foti was assessed at Medical Assessor Rebbeck’s rooms in Sydney on 10 July 2023. There had been confusion in the advice given to the claimant about the location of the medical examination and he was therefore late for the appointment. The physical part of the examination was undertaken in the time frame available. On 20 July 2020 the medical assessment was completed with a telehealth consultation.
Before the assessment, Medical Assessor Rebbeck clarified that Mr Foti understood the reason for this panel assessment. He stated that the last assessor made a decision, but the insurer did not accept the decision. Medical Assessor Rebbeck confirmed this was correct and that the main focus was to determine whether and how much past and ongoing physiotherapy is related to the accident and reasonable and necessary.
History
Pre-accident medical history and relevant personal details
Mr Foti is currently 71 years of age.
He stated that he lives at home with two adult children. One of his children had an acquired brain injury in 2000 and Mr Foti has been his primary carer over the past 15 years. This child has a personal trainer and Mr Foti indicated that he has, from time to time used this personal trainer. Mr Foti told Medical Assessor Rebbeck that he trusted his son’s personal trainer.
Mr Foti owned a fruit and vegetable business for 20 years before the accident working up to 60 hours per week in the business. Since the accident, he has been unable to work at all. His children, primarily his oldest son manages the business now.
Mr Foti stated he was active around the house before the accident doing house maintenance work.
Mr Foti denied any significant illness or injuries prior to the subject accident. He mentioned an umbilical hernia repair in 2000 that he recovered well from.
History of the motor accident
The panel had over 1,500 pages of information where significant detail about the accident, resultant injuries and treatment have been provided in great detail. Medical Assessor Rebbeck clarified with Mr Foti the accident date (24 September 2018) that it was an accident ending where he hit a tree, snapping the tree and that he sustained multiple orthopaedic and internal injuries. He was unconscious, had to be retrieved from the vehicle and was taken by ambulance to Westmead Hospital.
History of symptoms and treatment following the motor accident
Mr Foti confirmed with Medical Assessor Rebbeck that he has sustained the foloiwng injuries:
(a) internal injury to bowel (small bowel iscaeumia leading to emergency lapartoomy on 24 September 2018);
(b) fracture to T10 vertebral body;
(c) left ankle fracture (Weber A);
(d) right patella, tibial plateau, ulnar and femoral shaft fracture;
(e) grade 1-2 renal laceration, and
(f) deep venous thrombosus right calf.
He underwent surgery at Westimad Hospital including surgery to his bowel, followed by orthopaedic suregery to the tibia, femor, patella and ulnar on 25 September 2018. Specifically these were:
(a) right femoral nail;
(b) right tibial plateau percutaneious screws;
(c) right patella open reduction internal fixation, and
(d) right ulna shaft open reduction internal fixation.
Mr Foti also had a laparotomy and resenction of anastomosis and end iliostomoy formation on 3 October 2019. Mr Foti then underwent a period of inpatient rehabilitation at Westmead Hosppital followed by Minchinbury Hospital. He progressed from walking in frames to sticks as his fracutres healed.
In May 2019, the claimant commenced physiotherapy treatment with his nephew, Mr Joseph Foti. The first AHRR indicates that the first tretament occurred on 13 May 2019. He stated physiotherapy has consisted of massage, some manual therapy and supervised exercise. He stated he attended physiotherapy twice weekly at least until June 2021 (see AHRR 8). He stated that early treatment improved his symptoms and enabled him to function. Overall he stated function has improved (listing ability to walk and stand). He stated that around this time, treatment was questionned by his insurer and then stopped.
Mr Foti has continued to pay for treatment himself until the present date. He attends on average on a weekly basis. He stated that this treatment improves his sympoms. When asked about improvement in function, he stated that overall he thinks he has improved, when considering that after the accident he could not walk at all.
When asked what his goals were for treatment, he stated they were to improve his sitting, standing and walking tolerances so he can drive and do more jobs at home. When asked what he felt was needed to help him achieve those goals, he said “to be stronger”. He was asked to demonstrate and describe what strenghteing exercises he was doing with his nephew, and he was able to demonstrate and describe stretching exercises and some low load lower limb exercises. He was unsure how often these exercises were reviewed and whether his newphew had progressed or upgraded his exercises from time to time. He trusts his nephew and his advice.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Foti denies any significant injuries or conditions sustained since the motor accident.
Current symptoms
Mr Foti completed a body chart indicating where his current symptoms are. A copy of this body chart is reproduced below.
[image unable to render]
Persistent symptoms were prescribed as:
(a) low back pain, intensity 7/10;
(b) bilateral leg pain, intensity 7/10;
(c) intermittent bilateral leg pins and needles and numbness, and
(d) right knee swelling.
Current function
Mr Foti stated that he has not worked since the accident. He feels limited in most functional activities and stated that his sitting and standing tolerance is limited to about 30 minutes. In particular, he reported needing to lean against a wall to stand for longer and often tries to find somewhere to lean against if its available. His walking tolerance is also around 30 minutes.
The low back and leg pain he says are the limiting factors preventing further functional improvement.
Questionnaires and beliefs
Mr Foti completed the following questionnaires after the examination:
(a) the Orebro Musculoskeletal Pain Screening Questionnaire. Mr Foti scored 75/100. Of note he scored more than 5/10 on the following items:
(i)item 2 – pain intensity score 7/10;
(ii)item 7 – risk of persistent pain score 8/10;
(iii)item 8 – chance of resuming normal activities – score 10/10, indicating he does not feel confident he will be working his normal duties in three months;
(iv)item 9 – beliefs about pain – score 8/10, indicating pain means he should stop what he is doing until pain decreases, and
(v)item 10 – beliefs about work – score 8/10 which means that he should not work with the current pain.
(b) the Depression Anxiety and Stress Scale (DASS) scored as follows:
(i)9/21 for depression (mild);
(ii)5/21 for anxiety (moderate), and
(iii)7/21 for stress (normal).
(c) in the Oswestry Disability Questionnaire, Mr Foti scored 30/50 (is that 60%). This indicates moderate to severe-self-reported disability due to low back pain, and
(d) with the Lower Extremity Functional Scale, Mr Foti scored 8/80. This indicates moderate to severe disability in lower limb function.
It is the clinical judgment of the medical members of the Panel that these results indicate a high risk of a poor outcome.
Current and proposed treatment
Mr Foti confirmed he sees his physiotherapist Mr Joseph Foti sometimes once per week, or once per fortnight. He stated that treatment consists of massage, manual therapy and exercises.
He stated that he feels “looser” and in less pain as a result of the treatment, however the effect is short lasting (a few days to a week at most).
Mr Foti says he also does some exercises at home. He explained that he “uses” his son’s personal trainer from time to time and he told Medical Assessor Rebbeck that he would trust this personal trainer to become involved in his strength and endurance training.
Mr Foti feels he has improved.
The Panel notes however that the current function as reported by Mr Foti is worse than that listed in AHRR 8 completed on 9 June 2021. For example, his walking tolerance was listed as 40 minutes, standing as 45 minutes and sitting as 45 minutes, whereas Mr Foti said his current function is limited to only 30 minutes for all three of these activities.
Clinical examination
In the lumbar spine, Mr Foti demonstrated restricted and painful range of motion as follows:
(a) flexion – able to reach hands to mid shins. This increased his low back and leg pain;
(b) extension – 20 degrees (measured by inclinometer). This increased low back pain;
(c) left lateral flexion – hand to10cm above the knee crease, increasing low back pain, and
(d) right lateral flexion, hand to 15cm above the knee crease, increasing low back pain.
There was normal range of motion in Mr Foti’s left hip. His right active hip range of motion was measured as follows:
(a) hip flexion – 90 degrees;
(b) extension – 20 degrees;
(c) hip internal rotation – 10 degrees, and
(d) hip external rotation – 30 degrees.
The range of motion in the knees was measured and is set out below:
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
0°
0°
Extension
90°
120°
There was normal range of motion in both ankles.
Neurological assessment.
A neurological assessment was undertaken for both the upper and lower limbs. There were normal reflexes and there was normal dermatomal sensation and normal myotomal strength exhibited.
The right knee reflex was difficult to elicit, presumably due to the multiple surgeries but was able to be elicited with augmentation.
Comments on consistency
Mr Foti presented in a consistent manner, with no obvious illness behaviour. He was able to perform all of the active movements consistently. There was pain during movement, and he reported some pain during the testing at which stage testing was stopped or changed to minimise any further discomfort.
Mr Foti sustained multiple serious orthopaedic injuries in his accident and life-threatening internal injuries. His current persistent symptoms and impairments are consistent with the orthopaedic lower limb injures sustained and the subsequent post-surgical pain and impairments. In addition, he has developed lower back pain (without radiculopathy). In summary he reports
(a) persistent symptoms of low back and leg pain;
(b) impairment of lumbar and right hip and knee range of motion;
(c) high levels of self-reported disability on testing;
(d) low levels of function (walking, standing and sitting tolerances);
(e) inability to do jobs around house, and
(f) not working.
There is no evidence of any lumbar spine nerve root or other neurological injury, give the normal upper and lower limb neurological examination.
The claimant’s presentation at the examination is consistent with the reports and documentation on file, and consistent with the treating health professionals’ records considered by the Panel.
PHYSIOTHERAPY PROVIDED
Is the physiotherapy provided related to the claimant’s injuries?
The medical members of the Panel are of the view that the disputed past physiotherapy treatment is related to the injures Mr Foti sustained in the accident. AHRR 8 lists the injures that are the focus of the treatment as those that were sustained in the subject accident. The signs and symptoms reported in the AHRR and the impairments listed are to both the trunk and the lower limbs. The treatment provided by Mr Joseph Foti appears from his notes and correspondence to be to the lower back and lower limbs.
The exercises that Mr Foti demonstrated and described to Medical Assessor Rebbeck are specific to the lower back and lower limbs. For this reason, the Panel is satisfied that the past physiotherapy in dispute, that is the treatment already provided to Mr Foti to the date of this Review relates to the injuries caused by the subject accident.
Is the physiotherapy provided reasonable and necessary in the circumstances?
General remarks
The medical members of the Panel are of the view that not all the physiotherapy treatment that has been provided to date is reasonable and necessary.
It is the clinical judgment of the medical members of the Panel that in most motor accident injury cases, it would be reasonable and necessary for a physiotherapist to provide treatment on a weekly basis for the first 12 months to manage symptoms (including symptoms of pain) and prescribe exercises. The medical members of the Panel are of the view that in their experience, ongoing passive treatment is not helpful in managing post-orthopaedic lower limb fractures or lower back pain. It is their clinical experience that exercise programmes addressing endurance and strength are more beneficial in rehabilitation programmes for both lower limb orthopaedic rehabilitation and to reduce lower back and lower limb pain.
Reasonable and necessary physiotherapy treatment as an injured person progresses past 12 months should, in the clinical judgment of the medical members of the Panel, consist of supervised exercises with those exercises progressed or upgraded at each review.
It is the clinical experience of the Medical Assessors that after an injured person has had 24 months of supervised physiotherapy treatment they should be confidently exercising and able to exercise independently. Because endurance and strength gains are, at that time difficult to make on a weekly basis, it is reasonable to taper reviews to fortnightly and then monthly and from there to every six months to monitor progress and, where necessary, upgrade exercises.
Physiotherapy – the first two years
Mr Foti has had weekly or twice weekly physiotherapy since 13 May 2019 for two years, that is until at least the end of May 2021.
It is the clinical experience of the Medical Assessors that, with extensive injuries like those of by Mr Foti’s, it would be reasonable in his case to provide supervised exercises on a weekly basis for a further 12 months after the first year of treatment, that is until two years after the treatment commenced. At that stage, with appropriate professional support, he should have been able to progress to self-managed exercises. In Mr Foti’s case, at a point in time two years after his physiotherapy commenced, treatment was still being provided weekly and in some weeks, twice weekly and was still being paid for by the insurer.
The Panel notes that none of the physiotherapy provided to the claimant in the first two years after it was commenced is in dispute.
Physiotherapy – from June 2021
Physiotherapy has continued at least weekly or fortnightly for a further two years and two months until the date of the Review and this treatment is disputed.
Mr Foti indicated to Medical Assessor Rebbeck that the reasons for continuing to see his nephew for treatment and to have that treatment weekly or fortnightly involved issues of both trust in his treatment provider and his own motivation.
The medical members of the Panel are of the view that the treatment after June 2021 should have been aimed at improving functional goals (in this instance Mr Foti’s ability to garden, return to lawn mowing, walking and standing). Exercises should have been aimed at lower limb endurance and strength and trunk endurance and strength. In Mr Foti’s case, the exercises he demonstrated and explained were stretches or low load exercises that were unlikely to have made considerable strength and endurance gains over time. The Medical Assessors note that in their clinical experience, strength and endurance training and exercises reduces pain and is therefore more beneficial overall.
In Mr Foti’s case, he stated that much of the treatment he is receiving is massage, a treatment not recommended by the medical members of the Panel in the management of orthopaedic injures, particularly at this stage, four plus years after the accident. Massage can reduce pain and can be considered reasonable in the acute phase whilst the person is transitioning to more active treatment.
Dr Munasinghe in his report from November 2021 notes that the claimant’s need for physiotherapy would be required for an uncertain period but until he returns to baseline mobility and can perform his daily activities. Dr Munasinghe says at least a further six months would have been required (that is to May 2022). Dr Munasinghe also says the physiotherapist should be assisting and teaching the claimant the correct exercises and techniques. While Dr Munasinghe also states the claimant’s condition might deteriorate if he did not have physiotherapy and that he requires ongoing physiotherapy, that opinion cannot be considered in isolation. When read as a whole, his report supports the Panel’s view that goal focussed physiotherapy aimed at teaching the claimant how to perform exercises, so that independently Mr Foti can manage his own condition and function, is reasonable and necessary.
Dr Gupta’s report was provided after the original medical assessment and supports Medical Assessor Wijetunga’s findings of a further five to six years of physiotherapy. The report gives no independent medical or clinical reasons and as it relies on the assessment under review, it is of little assistance to the Panel.
Mr Joseph Foti’s undated letter to the claimant’s solicitor says the claimant needs ongoing physiotherapy because home based exercises have been trialled and failed with a resulting deterioration in the claimant’s functioning and an increase in his pain. Mr Joseph Foti does not explain specifically when and why the home-based exercises failed. Mr Joseph Foti does not give objective reasons, examinations results and so on to support his opinions.
The Diab criteria (see paragraph 16) for what might be reasonable and necessary treatment are as follows:
(a) the appropriateness of the treatment in dispute – the Panel is of the view that while physiotherapy is an appropriate treatment for the injuries sustained by Mr Foti, physiotherapy at the frequency it is claimed and the type of physiotherapy provided is not appropriate, four years after the accident;
(b) the availability of alternative treatment – the Panel notes that the claimant does not appear to have had any in patient or out-patient multidisciplinary pain management treatment. The Panel also notes that the claimant has had some assistance from his son’s personal trainer and trusts this personal trainer.
(c) the cost effectiveness of the treatment – the claimant has incurred $6,500 over two plus years. While the cost of a bit over $100 a month is not a significant sum for the insurer and is a significant sum for the claimant, the Panel notes that the treatment is having little effect in improving the claimant’s objective functionality (his walking, sitting and standing tolerances have decreased);
(d) the actual or potential effectiveness of the treatment – the actual effectiveness of the particular treatment provided to date by the claimant’s nephew in terms of functional gains has been addressed. Physiotherapy has been and can be effective if addressing strength and endurance, and
(e) the acceptance by medical experts of the appropriateness of the treatment – the Medical Assessors note that exceptions to what is clinically and usually reasonable and necessary can be made in this case, given the extent of Mr Foti’s orthopaedic injuries, however the treatment provided since AHRR 8 was submitted (9 June 2021) is excessive and not reasonable.
It is the clinical judgment of the medical members of the Panel that from 9 June 2021(the date of AHRR 8) it is reasonable and necessary for the claimant to have had fortnightly treatments for a further 12 months (to 8 June 2022). From 9 June 2022 it would be reasonable and necessary for the frequency of treatment to taper or reduce to monthly reviews and upgrades until 8 June 2023.
PHYSIOTHERAPY TO BE PROVIDED
Is the weekly physiotherapy to be provided related to the claimant’s injuries?
For the reasons set out in paragraphs 120 and 121 above, the physiotherapy to be provided is to address the lower limbs and the lower back which were injured in the accident of 24 September 2018. The physiotherapy treatment is therefore related to the claimant’s injuries.
Is the future physiotherapy reasonable and necessary in the circumstances?
The Medical Assessors on this Panel are of the view that some minimal future treatment may be reasonable and necessary however it is their clinical judgment that indefinite weekly physiotherapy is not reasonable or necessary in the circumstances.
The Medical Assessors are of the view that in their clinical judgment, reasonable and necessary treatment for the rehabilitation of Mr Foti’s multiple lower limb orthopaedic fractures and lower back pain would be active exercise. At this stage after the accident (nearly five years) regular generally passive treatment such as “maintenance physiotherapy” should have ceased and the claimant should be motivated and undertaking his own self-managed exercise program.
However, given the extent of Mr Foti’s injuries it is reasonable and necessary to provide a 12-month program from now to help the claimant transition away from the claimant’s physiotherapist and his current treatment. This program would involve initially monthly progression and upgrade of exercises and later transition Mr Foti to confident self-management of his program of choice. Outcomes to expect would be greater confidence to continue a home exercise programme unsupervised.
The Panel is therefore of the view that:
(a) weekly physiotherapy sessions into the future is not reasonable and necessary in the circumstances;
(b) one physiotherapy review to develop an endurance and strength-based exercise program is reasonable and necessary in the circumstances;
(c) monthly physiotherapy sessions thereafter for six months (six reviews) is reasonable and necessary in the circumstances, and then
(d) one session every three months for six months after that (two further reviews) is reasonable and necessary in the circumstances.
CONCLUSION
The medical members of the Panel are of the view that reasonable and necessary physiotherapy treatment should be aimed at improving function. It is the clinical judgment of the medical members of the Panel that passive treatment creates co-dependence, is not recommended in clinical guidelines, does not result in improvement in function and worse, can delay functional gains and lead to poorer overall outcomes.
The physiotherapist, Mr Joseph Foti, has not listed pain management as a goal of treatment. The goal is listed as improving active range of motion and to improve sitting, standing and walking tolerances. This has not been achieved with the largely passive treatment provided to date. The claimant’s function remains almost the same now as it was two years ago.
In order for Mr Foti to have a chance at improving his functional goals, exercises should be progressed and upgraded. Ongoing primarily passive therapy with a physiotherapist is unlikely to achieve these goals.
As the Panel has come to a different conclusion to Medical Assessor Wijetunga it follows that her certificate should be revoked, and a new certificate issued.
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