Insurance Australia Limited t/as NRMA Insurance v Hasoon

[2024] NSWPICMP 843

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Hasoon [2024] NSWPICMP 843

CLAIMANT:

Wameidh Hasoon

INSURER:

Insurance Australia Limited t/as NRMA

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

David Gorman

DATE OF DECISION:

10 December 2024

CATCHWORDS:

MOTOR ACCIDENTS – Medical review of certificate of Medical Assessor (MA) Garvey; motor vehicle accident on 23 July 2022; the dispute related to treatment under the Motor Accident Injuries Act 2017; injury sustained to cervical spine, thoracic spine; lumbar spine and both shoulders; MA Garvey certified endoscopic gastric balloon insertion did not relate to the injury caused by the accident and was not reasonable and necessary and will not improve recovery; MA Garvey certified Ozempic injections relate to the injury caused by the accident, were reasonable and necessary and will improve recovery; Held – endoscopic gastric balloon insertion and Ozempic injections relate to the injury caused by the accident having regard to the claimant’s weight gain caused by decreased physical activity, dietary changes and increased alcohol consumption; endoscopic gastric balloon insertion is not reasonable and necessary and will not improve recovery of claimant where it can be associated with adverse effects and where not associated with comprehensive weight loss program; Ozempic injections not reasonable and necessary and will not improve recovery of claimant where claimant has been using Ozempic for three to four months without success; and where he is unlikely to adopt a comprehensive weight management program; certificate of MA Garvey revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
ASSESSMENT OF TREATMENT AND CARE
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Panel revokes the certificate of Medical Assessor Garvey dated 6 May 2024 and issues a new certificate certifying the following:

·        endoscopic gastric balloon insertion does relate to the injury caused by the accident;

·        endoscopic gastric balloon insertion is not reasonable and necessary in the circumstances;

·        endoscopic gastric balloon insertion will not improve the recovery of the claimant;

·        Ozempic injections relate to the injury caused by the accident;

·     Ozempic injections, are not reasonable and necessary in the circumstances, and

·     Ozempic injections will not improve the recovery of the claimant.

STATEMENT OF REASONS

INTRODUCTION

1. On 23 July 2022 Mr Wameidh Hasoon (the claimant) was driving his motor vehicle. Whilst it was stopped at a red light the insured vehicle collided with the rear of his motor vehicle (the accident).

2. Mr Hasoon was 43 years of age at the date of accident and is now 45 years of age.

3. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).

4. Mr Hasoon submitted an Application for personal injury benefits dated 28 July 2022 in respect of injury sustained in the accident.

5. On 21 August 2023 Dr Sanki on behalf of the claimant asked the insurer to fund Ozempic injections and gastric balloon insertion.

6. On 30 August 2023 the insurer declined to fund the Ozempic injections and the gastric balloon insertion on the basis they were not reasonable and necessary and did not relate to the injury sustained by the accident.[1] 

   [1] Insurer’s bundle p 69.

7. On 15 September 2023 the claimant requested an internal review of the decision to decline the Ozempic injections and the gastric balloon insertion.

8. On 5 October 2023 the insurer issued a Certificate of Determination – Internal Review affirming its decision to decline the Ozempic injections and the Gastric Balloon insertion.[2] The insurer concluded there was contemporaneous evidence to establish causation between the accident and a lumbar spine injury. However, the insurer asserts the clinical findings of Dr Girgis and of Dr Kanawati indicate the symptoms are soft tissue in nature in the context of degenerative changes. On the basis the need for lumbar spine surgery is not causally related to the accident the insurer concluded the treatment by way of Ozempic injections and the gastric balloon insertion are not related to the accident and are not reasonable and necessary.

   [2] Insurer’s bundle p 76.

9. The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment dispute between the parties.

10. 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” and (c) “whether for the purposes of s 3.28 of the MAI Act the treatment or care provided will improve the recovery of the injured person”.  Schedule 2, cl 2(c) was repealed on 1 April 2023. However, under the Motor Accident Injuries Amendment Regulation 2023 (Regulation) the Panel has the power to determine the dispute as to recovery of the injured person where it provides that Schedule 2, cl 2(c) of the MAI Act, as in force immediately before its repeal on 1 April 2023 continues to apply to a motor accident which occurred before 1 April 2023.

11. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]

    [3] Section 7.20 of the MAI Act.

12. These disputes were assessed by Medical Assessor John Garvey who issued a certificate dated 6 May 2024.

TREATMENT – STATUTORY PROVISIONS

1. Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care 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-      

   (a)The reasonable cost of treatment and care,

   (b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,

   (c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.

   (2)     No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

1. The Review Panel (Panel) issued a Direction to the parties on 5 August 2024. The Panel noted the insurer had uploaded an indexed and paginated bundle of documents on 21 June 2024. The insurer’s bundle was paginated from pages 1 to 187 (insurers bundle).

2. On 16 October 2024 the solicitor for the claimant uploaded to the portal a bundle of documents[4] paginated from pages 1 to 11 (claimant’s bundle) and another indexed bundle on the same date paginated from pages 1 to 9 containing reports of Dr Mastroianni dated 14 September 2023 (x 2).

   [4] Insurer’s bundle p 4.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Garvey issued a certificate dated 6 May 2024 in which he certified as follows:

   ·        endoscopic gastric balloon insertion does not relate to the injury caused by the accident, is not reasonable and necessary in the circumstances and will not improve recovery, and

   ·        Ozempic injections relate to the injury caused by the accident, are reasonable and necessary in the circumstances and will improve recovery.[5]

   [5] Insurer’s bundle p 9.

2. The treatment disputes referred for assessment were as follows:

   (a)    whether the request for Ozempic injections and gastric balloon insertion made by Dr Sanki relates to the injuries caused by the accident;

   (b)    whether the request for Ozempic injections and gastric balloon insertion made by Dr Sanki is reasonable and necessary in the circumstances, and

   (c)    whether the request for Ozempic injections and gastric balloon insertion made by Dr Sanki will improve recovery.

3. Medical Assessor Garvey noted Ms Hasoon also suffered from chronic obstructive pulmonary disease, right deep venous thrombosis, obesity, major depression, recurrent cellulitis both legs, gout, lipid disorder and hypertension.

4. Medical Assessor Garvey reported the current symptoms were severe unbearable back pain and weight gain of 50kg. He concluded that lumbar and cervical spine pain can significantly limit and affect the ability to engage in physical activity such as walking, exercising and the activities of daily living. A sedentary lifestyle can lead to a decrease in energy expenditure and a propensity to gain weight.

5. Medical Assessor Garvey concluded treatment by gastric balloon insertion is not reasonable or necessary because whilst the short term outcomes may be promising once the balloon is removed patients struggle to maintain weight loss. He also noted adverse effects such as balloon migration, bowel obstruction and gastric perforation. He stated comprehensive weight management in a Metabolic rehabilitation weight loss unit are more effective and sustainable alternatives.

6. Medical Assessor Garvey noted Ozempic helps regulate blood sugar levels, promote satiety and reduces appetite. He considered it should be used as part of a comprehensive weight management program.  

7. He noted obesity is associated with increased risk of complications during and after lumbar surgery and considered that incorporating Ozempic as part of a comprehensive preoperative and post-operative management plan may improve recovery for a patient undergoing lumbar spine surgery.

8. In concluding the Ozempic injections were reasonable and necessary Medical Assessor Garvey stated:

   “It should be used as part of a comprehensive weight management program that includes dietary changes and supervision by an Endocrinologist ideally in the scenario of a Metabolic Rehabilitation Weight Loss clinic in a Hospital. Ozempic can lead to a mean weight loss of about 15% after a year of treatment. Successful weight loss with Ozempic requires adherence to treatment protocols and adoption of a healthy diet and counselling on lifestyle modifications and ongoing support from a Metabolic Rehabilitation Weight Loss Clinic as is found at the Concord Repatriation and General Hospital.”

REVIEW PROCEDURE

1. The claimant has sought a review of the medical assessment of Medical Assessor Garvey.

2. The claimant lodged an application for review of the medical assessment on 4 June 2024          within 30 days of the date on which the certificate was made available to the parties.

3. On 19 July 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).

4. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act, 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]

   [6] Rule 128 of the PIC Rules.

5. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

6. On 24 October 2024 the Panel agreed an examination was necessary.

EVIDENCE BEFORE THE REVIEW PANEL

Other medical assessment certificates

Certificate of Medical Assessor Kenna

1. Medical Assessor Kenna issued a certificate dated 15 November 2023 in which he certified the following injuries caused by the accident were threshold injuries for the purposes of the MAI Act:

   ·        cervical spine – soft tissue injury;

   ·        thoracic spine – soft tissue injury;

   ·        lumbar spine – soft tissue injury;

   ·        left shoulder – soft tissue injury, and

   ·        right shoulder – soft tissue injury.[7]

   [7] Insurer’s bundle p 22.

2. Medical Assessor Kenna reported Mr Hasoon presented with a massive physical presentation noting he had obviously been into body building over his lifetime. He reported during most of the assessment Mr Hasoon was fairly non-cooperative and just stood and leant against the couch.

3. Medical Assessor Kenna was unable to establish any definable pathology and considered that any initial soft tissue injury had since resolved. In his view the overall current condition was not consistent with the alleged injuries and disabilities. He considered the claimant’s prognosis to be poor noting he presented with a high level of functional disability. 

Certificate of Medical Assessor Gerald Chew

1. In a certificate dated 3 October 2023 Medical Assessor Chew diagnosed a persistent depressive disorder which was not a threshold injury for the purposes of the MAI Act.[8]

[8] Insurer’s bundle p 177.

Certificate of Medical Assessor Sidorov

1. Medical Assessor Sidorov provided a certificate dated 9 May 2024.[9] He certified the accident caused exacerbation of a major depressive disorder which gave rise to a 3% whole person impairment (WPI).

   [9] Insurer’s bundle p 27.

2. Medical Assessor Sidorov reported Mr Hasoon left Iraq in 2005 due to the war. He had been shot in the lower right part of his abdomen and had undergone surgery in Iraq. He also reported shrapnel had to be removed from his shoulder after a rocket fell near him. After leaving Iraq he stayed in Syria for 14 years before arriving in Australia in 2019. In Australia he sustained an injury in the gym where he dropped weights on his knees. He reported he had been very fit and involved with bodybuilding and training.

3. Medical Assessor Sidorov reported Mr Hasoon appeared to generally minimise his psychiatric history prior to the accident. He attributed all his depressive symptoms to the accident despite the fact he was seeing Dr Rastogi prior to the accident. Dr Rastogi in a letter dated 8 July 2022 diagnosed an adjustment disorder with anxiety associated with a physical injury.

4. Medical Assessor Sidorov concluded Mr Hasoon initially developed a major depressive disorder following his injury at the gym and also related to traumatic events he experienced in Iraq and Syria and the difficulty adjusting to life in Australia. He considered as a result of the accident there was an exacerbation of the major depressive disorder. He assessed a 22% WPI but attributed 19% of that impairment to the pre-existing impairment.

Certificate of Medical Assessor Gothelf

1. Medical Assessor Gothelf issued a certificate dated 2 June 2024.[10]

   [10] Insurer’s bundle p 16.

2. Dr Gothelf assessed a 5% WPI of the cervical spine, 0% WPI for the thoracic spine and 5% WPI for the lumbar spine. He assessed 8% WPI for the right upper extremity and 10% WPI for the left upper extremity resulting in a total WPI of 25%.

3. This certificate is also subject to review by the Panel.

Pre-accident treating medical evidence

1. On 8 July 2022 Dr Richa Rastogi, psychiatrist reported Mr Hasoon sustained an anterior cruciate ligament (ACL) tear that hindered his exercise. He was said to be waiting for surgery and dealing with pain. Dr Rastogi diagnosed an adjustment disorder with anxiety associated with the physical injury.[11]

   [11] Insurer’s bundle p 162.

2. Dr Rastogi reviewed Mr Hasoon on 28 October 2022 and provided a report.[12] Surprisingly there was no mention of the accident.

   [12] Insurer’s bundle p 165.

Application for personal injury benefits

1. In the application dated 28 July 2022 the claimant described his injuries as “back pain, neck pain, shoulder pain, leg pain/swelling, bruising, back/shoulders”.[13]

   [13] Insurer’s bundle p 51.

Post-accident treating medical evidence.

1. The NSW Ambulance Service attended the scene of the accident on 23 July 2022.[14] Pain in the back, the cervical spine, the sternum, the left lower leg and the right shoulder was reported. Mr Hasoon had an altered conscious state, headache, joint stiffness and neck stiffness. He had traumatic chest pain. He was taken by ambulance to Liverpool Hospital.          

   [14] Insurer’s bundle p 84.

2. In a Certificate of capacity/certificate of fitness dated 1 August 2022 Dr Sabri Hasam of Fairfield Chase Medical and Dental Centre reported the accident on 23 July 2022 caused “right and left leg pain and oedema, bilateral and (cervical and lumbar), generalised body pain, bilateral arms, anterior chest wall, midline vertebral”. He noted pre-existing back pain and bilateral knee pain (meniscal tear).[15]

   [15] Insurer’s bundle p 101.

3. On 9 September 2022 Dr Sanki reported Mr Hasoon’s condition was worse. He appeared depressed, had lost weight and was worried about the musculature in his upper and lower limbs.[16]

   [16] Insurer’s bundle p 156.

4. In a Certificate of capacity/certificate of fitness dated 14 September 2022 Dr Hasam recorded; “MVA, right and left leg pain and oedema, neck and back pain, anterior chest wall pain, bilateral shoulder pain”.[17]

   [17] Insurer’s bundle p 104.

5. In a Certificate of capacity/certificate of fitness dated 14 November 2022 Dr Magdy Girgis of Royale Medical Centre provided the following diagnosis; “severe neck, back, shoulders associated with tingling sensation hands after MVA on 23.08.2022. MRI (Multi-level C + L spines disc bulge – grade 1 spondylolisthesis L4 on L5”.[18]

   [18] Insurer’s bundle p 110.

6. Mr Hasoon commenced physiotherapy treatment with Rehab Solutions following an assessment on 5 October 2022. He reported pain in the neck and lower back and chest and arms. Physiotherapist Mr Lau diagnosed severe whiplash, cervical and lumbar discogenic pain with referred pain/symptoms into the limbs.[19] It was reported the claimant frequently moved position because it was painful for him stay in a stationary position. He was unable to perform a single leg stance. He had to use both hands on his knees or arm rest to push himself up.

   [19] Insurer’s bundle p 91.

7. On 27 March 2023 Dr Sanki reported severe pain in all his body, affecting his spine, upper limbs and lower limbs. He put the claimant on an Endone trial and recommended he continue to consult his psychiatrist Dr Rastogi.[20]

   [20] Insurer’s bundle p 153.

8. On 20 April 2023 Dr Sanki reported Mr Hasoon was suffering from severe pain in the palms, the thumbs and metacarpophalangeal joints. He could not walk long distances due pain in the heels.[21]

   [21] Insurer’s bundle p 157.

9. On 29 May 2023 Dr Sanki administered an injection of Tramol 100mg for severe back pain.[22]

   [22] Insurer’s bundle p 158.

10. Dr Andrew Kanawati saw the claimant on 17 July 2023.[23] He reported the MRI scan revealed multilevel spinal stenosis. He reported congenitally narrow pedicles predisposing him to severe spinal stenosis occurring at multiple levels L3/4, L4/5 where there was also a subtle spondylolisthesis and mild spinal stenosis at L5/S1. He reported severe neuropathic discomfort in both legs and lower back pain. He recommended surgery subject to weight loss.

    [23] Insurer’s bundle p 68.

11. On 4 August 2023 Dr Antoine Sanki reported Mr Hasoon continued to experience moderate pain.  Noting his request for gastric stapling to help him lose weight had been refused he recommended Ozempic injections for weight loss.[24]

    [24] Insurer’s bundle p 66.

12. On 11 August 2023 Dr Sanki referred to the report of Dr Kanawati who recommended an ideal weight for the claimant to achieve before he could undergo surgery would be 100kg.  Noting Mr Hasoon weighed 135kg Dr Sanki sought approval from the insurer to undergo gastric balloon insertion.[25]

    [25] Insurer’s bundle p 67.

1. The Panel notes the medical records disclose the following record of the claimant’s weight:

Record	Date	Weight
Dr Yeasmin clinical notes	8 March 2019	123kg
Registered nurse Nabil Abdul Ghafour	12 December 2022	127.7kg
Dr Girgis clinical notes	5 January 2023	129.5
Dr Girgis clinical notes	9 February 2023	129kg
Dr Girgis clinical notes	23 March 2023	129.5kg
Dr Andrew Kanawati report	17 July 2023	135kg
Dr Sanki report	11 August 2023	135kg
Dr Girgis Certificate of capacity	22 September 2023	137.5kg
Dr Girgis Certificate of capacity	27 October 2023	137.5kg
Dr Girgis Certificate of capacity	27 November 2023	137.5kg

Imaging

1. CT lumbosacral spine, 16 August 2022 – the report concludes:

   “There is canal stenosis at L4-5 with possible encroachment on the left nerve root. Degenerative facet joint changes also present. The patient may benefit from CT guided facet joint and epidural injections in the appropriate clinical setting”.

2. MRI cervical spine and lumbar spine, 4 October 2022[26] – the report concludes:

   “Severe narrowing right exit foramen at C4/5 level and moderate to severe narrowing both exit foramen at C5/6 and C6/7 levels. Severe canal stenosis at C5/6 and C6/7 level. No myelomalacia change evident.
   

   [26] Insurer’s bundle p 94.

   Severe narrowing both exit foramen at L4/5 level and moderate narrowing left exit foramen at L5/S1 level. Moderate canal stenosis at L4/5 level secondary to anterior and posterior causes. Grade 1 spondylolisthesis secondary to facet joint degenerative change.”

3. Bone scan, 11 October 2022

   “Features of degenerative endplate changes in lower cervical spine and features of facet joint arthropathy in cervical and lumbar spine.”

4. MRI lumbar spine, 8 June 2023[27]  – the report concludes:

   “Broad-based shallow left posterolateral disc protrusion at L4/5 associated with a grade 1 anterolisthesis due to facet arthrosis. This results in moderate to high-grade left lateral recess stenosis with some compression of the descending L5 nerve root. No further disc protrusions.
   Asymmetric disc bulge towards the right is also seen at L3/4 approaching on the descending right L4 nerve root though no definite impingement is seen at this level. No foraminal neural impingement throughout the lumbar spine.”

Medico-legal evidence

[27] Insurer’s bundle p 99.

Dr T Mastroianni, occupational physician

1. Dr Mastroianni assessed the claimant and provided two reports dated 14 September 2023. He reported Mr Hasoon was a difficult historian and had psychological issues. He complained of constant neck pain, back pain, shoulder pain, knee pain and ankle pain. He reported pain in both legs, pins and needles and pain in the wrists and pins and needs in the feet. He reported difficulties walking.

2. On examination Dr Mastroianni reported Mr Hasoon had a muscular physique consistent with one who did body building. He reported Ms Hasoon stood leaning on the couch as he was uncomfortable sitting. He reported Mr Hasoon walked with a wide based gait, stooped posture and shortened stance. Mr Hasoon said he used a walking stick but did not have it with him.

3. On examination Dr Mastroianni reported the claimant’s spinal movements were very restricted and he noted on casual observation that as he moved onto the couch Mr Hasoon’s spinal movements were still very restricted and there was dysmetria.

4. Dr Mastroianni concluded Mr Hasoon sustained injuries to the neck, back and shoulders and exacerbated pre-existing injuries of the knees and ankles. Dr Mastroianni noted he could not see any evidence which demonstrated Mr Hasoon had aggravated the pathology to his knees and ankles arising out of the 2019 gym accident.

5. Dr Mastroianni said in his opinion the claimant was not a surgical candidate for injuries to the cervical or lumbar spine. Dr Mastroianni noting tenderness and dysmetria found the claimant met the diagnosis-related estimate (DRE) cervical category II and assessed 5% WPI. Similarly, he assessed 5% WPI for the lumbar spine, noting tenderness and dysmetria.  He found a 10% WPI of the right shoulder and 8% WPI of the left shoulder.

SUBMISSIONS

Claimant’s submissions

1. The claimant provided submissions dated 4 June 2024.

2. The claimant submits Medical Assessor Garvey failed to explain his finding that endoscopic gastric balloon insertion does not relate to the injury caused by the accident where he apparently accepted that the claimant’s significant weight gain was caused by the accident.

3. The claimant notes on page 11 of his certificate Medical Assessor Garvey reported:

   “A rear end motor vehicle accident causing pain in the lumbar and cervical spine may contribute to morbid obesity and several factors associated with the injury and subsequent pain can potentially lead to weight gain and obesity”.

Insurer’s submissions

1. The insurer provided submissions in respect of the treatment dispute dated 4 June 2024.

2. The insurer contests the certificate of Medical Assessor Garvey in respect of the Ozempic injection only.

3. The insurer submits Medical Assessor Garvey failed to take into account the certificate of Medical Assessor Kenna dated 15 November 2023, noting Medical Assessor Kenna concluded the claimant sustained a soft tissue injury which had resolved. 

4. The insurer submits the claimant is not participating in a supervised weight management programme, nor has he consulted with a dietician or counsellor to provide education on lifestyle modification.

5. The insurer also notes that Medical Assessor Garvey stated the claimant could lose up to half a kilogram per week if he was to stop drinking five to six drinks of alcohol per day. The insurer submits the claimant is not adopting a healthy lifestyle. 

6. In concluding that the Ozempic injection will improve recovery from lumbar surgery the insurer notes no surgery request has been received and nor has the insurer accepted liability for surgery. The insurer submits the certificate of Medical Assessor Kenna does not support the need for surgery. 

7. The insurer refers to the Therapeutic Goods Administration (TGA) advice for Ozempic which recommends that Ozempic must be as an adjunct to diet and exercise. 

8. The insurer provided submissions dated 24 June 2024.[28]

   [28] Insurer’s bundle p 38.

9. The insurer submits the Medical Assessor erred in a material respect. Medical Assessor Garvey reported the claimant had a weight gain of 50kg following the accident stating:

   “With respect to his weight gain, when he was in Iraq, he competed in 80-90 and 90-100 kg weight classes in body building, that is his weight was 90, 95 and 96 kg. Since the accident, his weight had gone up to 157 kg.”

10. The insurer notes Myhealth Medical Clinic on 8 March 2019 reported the claimant’s weight was 123kg, well in excess of the 90kg indicated by Medical Assessor Garvey. The insurer submits the claimant was obese prior to the accident and the determination of Medical Assessor Garvey was based on incorrect information.

11. The insurer submits the request for endoscopic gastric balloon insertion and Ozempic injections were not casually related to the accident but due to the claimant’s obesity which pre-dated the accident.

THE MEDICAL EXAMINATION

1. Mr Hasoon attended the medical suites of the Commission where he was assessed by Medical Assessor Gorman. Medical Assessor Gibson was connected by MS Teams as arranged. Also present at the assessment were the claimant’s niece and an Arabic interpreter.

2. Mr Hasoon advised that he was unable to sit down and therefore remained standing through most of the assessment, which lasted over an hour.

3. Mr Hasoon did not bring any imaging with him for review by the Panel.

Past medical history

1. Mr Hasoon maintained that he was in good health prior to the accident although it was noted he had been unable to work soon after arriving in Australia due to a leg injury sustained in a gym. It was also noted from the clinical records that he had been diagnosed with chronic obstructive airways disease. There was a history of right deep venous thrombosis and recurrent cellulitis of both legs, gout, hyperlipidaemia and hypertension.

Home circumstances

1. Mr Hasoon said he arrived in Australia in February 2019.

2. He lives in a townhouse and is in receipt of the Centrelink pension.

3. His sister and his niece provide domestic assistance, with shopping and household chores.

4. Mr Hasoon said that his nephew comes over and helps him dress and undress and have a shower. He has a raised toilet seat in his bathroom.

5. When asked whether he goes out in a car, he said "Where do you want me to go?". It would seem he rarely if ever leaves the house.

History of the accident

1. It was noted from the records that Mr Hasoon was a seat-belted driver of a Jeep Cherokee driving along Memorial Avenue, Liverpool on 23 July 2022 at about 8,00pm. He had stopped at a red light when his vehicle was hit from behind by another car.

2. Police arrived after the accident and helped him out of his vehicle. The other driver was positive for alcohol on roadside testing.

3. Mr Hasoon was conveyed by ambulance to Liverpool Hospital where he remained overnight.

4. The ambulance report from the day of the accident noted there had been head strike on the steering wheel and car seat. He had reported generalised pain, particularly involving the neck, back, sternum and all limbs. He was moving his neck and all limbs independently.

5. Mr Hasoon had come under the care of his treating general practitioner, Dr Magdy Girgis.

6. He was referred for physiotherapy and had a limited number of sessions and he also had hydrotherapy treatment.

7. Mr Hasoon was reviewed by specialist Dr Andrew Kanawati, orthopaedic surgeon, on 17 July 2023, who had commented that the MRI scan had shown multilevel spinal stenosis which was predisposed by congenitally narrowed pedicles, there was a subtle spondylolisthesis and mild spinal stenosis at L5/S1. Dr Kanawati had also noted severe neuropathic discomfort in both legs as well as low back pain, Mr Hasoon was morbidly obese on a background of being a weightlifter, currently weighing 135kg. He added that he was:

   "…a surgical candidate and that he does have severe spinal stenosis at multiple levels in the setting of sciatica with neurogenic claudication. He would benefit from surgery but at his current weight he really is not a surgical candidate due to increased surgical and medical complications. I really advised him to undergo weight loss counselling and also the possibility of getting reviewed by a bariatric surgeon. I also think he needs psychological support, psychological review as well as dietician review as it seems like he drinks a lot of alcohol, which probably is not helping his current weight."

   He ended by stating that he ideally should weigh 100kg before surgery.

8. On 27 March 2023 Dr Antoine Sanki reported Mr Hasoon had "severe pain in all his body, which mainly affects his spine, upper limbs and lower limbs” He was put on an Endone trial.

Current complaints

1. Mr Hasoon said that his "whole body" was aching.

2. He had neck pain. He added that he "can’t handle this kind of pain." Both ears and both hands felt numb. When asked about his back, he said there was an "electric shock" going through his body.

3. There was pain extending from hips to legs.

4. He said due to the pain he spends most of his time sleeping.

5. He confirmed that he has normal bladder and bowel function.

Current treatment

1. Mr Hasoon was unable to recall his current medication regime and hadn’t brought any of his medications with him to the assessment. He advised that he had four Endone tablets this morning and generally has two to four Endone tablets daily. On prompting he was able to confirm that he takes 500mg Metformin daily.

2. Mr Hasoon said he has been using Ozempic 1mg weekly for the last three to four months. He said it had not helped with weight loss. He added that the insurer would not pay for gastric surgery.

3. When asked about his diet, Mr Hasoon said that he consumes only one meal a day, for example a standard serve of chicken, salad and rice. He said he only drinks alcohol on three days per week. On each of these days, he consumes about a bottle of Scotch. He denied any withdrawal symptoms on days he does not drink. He smokes 20 cigarettes per day. He maintained that his alcohol intake had commenced since the subject accident.

PHYSICAL EXAMINATION

1. Mr Hasoon is currently aged 45 years and is right hand dominant. He weighed 134kg.

2. He leant on his niece whenever he took a step. He moved slowly in an out of the examination room leaning on his niece.

3. However, later in the assessment in order to examine his reflexes, the couch was lowered, and he was encouraged and assisted to take a seat on the examination couch. He had a stocky physique. He was frequently tearful. There was much grimacing, and pain behaviour displayed throughout the physical assessment.

4. On examination of the cervical spine, neck movements were to ¼ normal range in all planes. There was no muscle spasm or guarding.

5. On examination of the thoracic spine, he was able to demonstrate movements to ½ normal range in all planes. There was no muscle spasm or guarding.

6. On examination of the lumbar spine, movements were to ¼ normal range in all planes. There was no muscle spasm or guarding.

7. On examination of the upper limbs, circumferential measurements did not demonstrate any radicular muscle wasting. Upper limb reflexes were of low amplitude but bilaterally present and equal. There was global sensory impairment of both upper limbs. In summary there were no signs of radiculopathy in either upper limb.

8. On examination of the shoulders, movements were variable. For instance, on formal testing, only 90° of abduction was obtained on the right side. However, when asked to put his hand on his head, about 120° of abduction could be achieved. Maximal active range was as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110°	110°
Extension	50°	50°
Internal Rotation	50°	60°
External Rotation	70°	70°
Abduction	90°	100°
Adduction	20°	30°

1. He reported pain in the neck with shoulder movements, as opposed to localised shoulder pain. When asked about the variability in the range of shoulder movements, both today and in comparison, with previous assessments, he said the pain was worse than before.

2. On examination of the lower limbs, circumferential measurements showed no radicular loss. Lower limb reflexes were present and equal bilaterally. Motor power was normal and equal.

RADIOLOGY REVIEW

1. The cervical and lumbar MRI scans are outlined above.

2. The MRI scan of 4 October 2022 demonstrated significant degenerative disease. There is spinal stenosis but no myelomalacia. While this degenerative disease was likely aggravated by the accident, there are no neurological findings consistent with cervical spinal compression. In the absence of significant imaging findings such as cervical spine compression the Panel does not consider aggravation of the underlying degenerative disease explains the claimant’s inability to walk unaided.

3. The MRI scans of the lumbar spine of 4 October 2022 and 8 June 2023 demonstrate degenerative disease with some nerve root compression of the left L5 nerve root and right L4 nerve root. There is moderate spinal stenosis. However, the pain reported by Mr Hasoon is widespread and is not limited to regions corresponding with the changes apparent on scanning.

DIAGNOSIS AND CAUSATION

1. The Panel accepts that the accident could have and did cause or contribute to the injuries alleged by the claimant to his cervical, thoracic and lumbar spine and to both shoulders having regard to the following:

   (a)    his complaints to the ambulance service of pain in the back, the cervical spine and the right shoulder;

   (b)    the inclusion of back, neck and shoulder pain in the Application for personal injury benefits dated 28 July 2022;

   (c)    the Certificate of capacity/certificate of fitness dated 1 August 2022 of Dr Hasam which documented cervical and lumbar and generalised body pain caused by the accident;

   (d)    the Certificate of capacity/certificate of fitness dated 14 September 2022 which documented, inter alia, neck and back pain and bilateral shoulder pain, and

   (e)    the lack of any evidence of pre-existing pain in either the back, the cervical spine or either shoulder other than the reference by Dr Hasam on 1 August 2022 of pre-existing back pain.

2. The Panel finds Mr Hasoon had sustained soft tissue injuries to his neck, upper and lower back and to both shoulders caused by the accident.

3. However, there were significant pain behaviours evident throughout the assessment which the panel was unable to explain on the basis of an organic medical injury/condition.

4. Indeed, the Panel notes the claimant’s unusual presentation was apparent as early as 9 September 2022 when Dr Sanki reported his condition was worse, he was depressed and had lost weight. On 5 October 2022 physiotherapist Mr Lau reported Mr Hasoon frequently moved position because it was painful for him to stay in a stationary position and he was unable to perform a single leg stance. By 27 March 2023, some eight months post-accident Dr Sanki reported severe pain in all his body and prescribed Endone. He recommended Mr Hasoon continued under the care of his psychiatrist.

5. The Panel cannot find a physical explanation given the available imaging or on clinical assessment as to why Mr Hasson could not sit, as to why he needed to lean on his niece whenever he walked and why he had variable and limited shoulder movements.

6. The Panel believes that the explanation for his unusual presentation is “somatisation” of his psychological distress in association with the deconditioning and “fear avoidance” behaviours associated with his chronic pain. There is not a physical explanation for his gross limitations in spinal movement and shoulder movement.

PANELS DETERMINATION

Does the proposed endoscopic gastric balloon insertion relate to the injury caused by the accident?

1. Whilst Medical Assessor Garvey concluded the accident had resulted in a weight gain of 50kg this is not borne out by the evidence where the claimant was 123kg as of 8 March 2019 and 127.7kg as of 12 December 2022, some five months post-accident. At the time of the medical examination Medical Assessor Gorman recorded the claimant’s weight as 134kg. Accordingly, whilst the Panel is prepared to accept that the claimant has gained weight since the accident the Panel finds the weight gain is more likely to be in the vicinity of 15kg.

2. The Panel is not asked to determine whether the proposed surgery is reasonable and necessary and whether it relates to the injury caused by the accident. However, it is clear from the report of Dr Kanawati that he would only consider surgery if the claimant lost weight and where the claimant currently weighs 134kg a weight loss of in excess of 34kg would be required before he would consider surgery.

3. Where the Panel is prepared to accept the claimant has gained weight since the accident caused by decreased physical activity, dietary changes and increased alcohol consumption the Panel finds the proposed gastric balloon insertion does relate to the injury caused by the accident.

Is the proposed endoscopic gastric balloon insertion reasonable and necessary in the circumstances?

1. The Panel finds treatment by endoscopic gastric balloon insertion is not reasonable and necessary in the circumstances. 

2. Endoscopic gastric balloon insertion is an invasive procedure and can be associated with adverse effects including bowel obstruction, gastric perforation and balloon migration. In the experience of the Panel the long term outcome of gastric balloon insertion is poor where weight gain is common once the balloon is removed.

3. Endoscopic gastric balloon insertion is only effective in the longer term when it is associated with a comprehensive weight loss program, including dietary modification and exercise. There is no evidence to establish that the claimant is likely to undertake a comprehensive weight loss program having regard to his current inactivity, poor diet and alcohol consumption.

Will the proposed endoscopic gastric balloon insertion will improve the recovery of the claimant?

1. The Panel does not consider the proposed endoscopic gastric balloon insertion will improve the recovery of the claimant where it is unlikely to be successful as an isolated procedure without dietary and activity change.

Does the proposed Ozempic injections relate to the injury caused by the accident?

1. Where the Panel is prepared to accept the claimant has gained weight since the accident caused by decreased physical activity, dietary changes and increased alcohol consumption the Panel finds the proposed Ozempic injections do relate to the injury caused by the accident.

Are the proposed Ozempic injections reasonable and necessary in the circumstances?

1. The Panel has the benefit of hindsight. Mr Hasoon has been using Ozempic 1mg for the last three to four months. He has not found it helpful with weight loss.

2. The Panel notes that Ozempic is not indicated unless it is in the context of a program of diet and exercise. Mr Hasoon informed the medical assessors that he spends most of his time sleeping, rarely leaves the house and is inactive, he says, by reason of severe pain. Currently he is only eating one meal a day but on about three days a week he consumes a bottle of scotch. He also smokes 20 cigarettes per day.

3. The Panel finds the proposed Ozempic injections are not reasonable and necessary in the circumstances given the psychological distress and pain avoidance behaviours which seem to be associated with the claimant’s chronic pain and where he is unlikely to adopt a comprehensive weight management program including dietary changes, increased exercise and lifestyle modifications.

Will the proposed Ozempic injections will improve the recovery of the claimant?

1. The Panel concludes, with the benefit of hindsight, that Ozempic injections will not improve the recovery of the claimant where there has been no weight loss or improvement in the claimant’s condition notwithstanding he has now been using Ozempic without success for three to four months.

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Garvey dated 6 May 2024 and issues a new certificate certifying the following:

   ·        endoscopic gastric balloon insertion does relate to the injury caused by the accident;

   ·        endoscopic gastric balloon insertion is not reasonable and necessary in the circumstances;

   ·        endoscopic gastric balloon insertion will not improve the recovery of the claimant;

   ·        Ozempic injections relate to the injury caused by the accident;

   ·        Ozempic injections, are not reasonable and necessary in the circumstances, and

   ·        Ozempic injections will not improve the recovery of the claimant.