Insurance Australia Limited t/as NRMA Insurance v Kim
[2024] NSWPICMP 343
•27 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Kim [2024] NSWPICMP 343 |
| CLAIMANT: | Kook Hee Kim |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 27 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review of Medical Assessor (MA) Home’s decision about treatment; claimant injured in accident on 27 January 2022 and referred two disputes about cervical spine surgery and lumbar spine surgery at the same time; both disputes referred to MA Home who conducted one examination and issued one document certifying the cervical spine surgery was related to the injuries caused by the accident and was reasonable and necessary in the circumstances; however, he certified that the lumbar spine surgery was not; the insurer sought a review of the cervical spine surgery, but the claimant did not apply for review of the lumbar spine surgery or raise it in the submissions in reply; claimant later confirmed in answer to query from the Panel that the lumbar spine surgery was still in issue; issues of causation in relation to both surgeries due to previous accident and similar symptoms; Held – Panel could consider the lumbar spine surgery; cervical spine surgery, while related to the injuries caused by the accident, was not reasonable and necessary because no signs of radiculopathy and testing indicated the presence of carpal tunnel syndrome; lumbar spine surgery found to be related to the injuries caused by the accident and reasonable and necessary due to presence of several signs of radiculopathy on examination; Mc Kee v Allianz and Meuwissen v Boden considered and distinguished regarding scope of Review; Blacktown City Council v Hocking applied regarding use of photographs; Briggs v IAG considered regarding application of impairment guidelines to treatment disputes; AAI Limited v Phillips applied to test of causation for surgery; Clampett v WorkCover and Diab v NRMA applied to test of reasonableness and necessity of treatment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificates of Medical Assessor Home dated 5 June 2023. 2. Certifies that: (a) the left L5/S1 microdiscectomy proposed by Dr Kim is reasonable and necessary in the circumstances, and related to the injury caused by the accident, and (b) the C5/6 and C6/7 anterior cervical discectomy and fusion is related to the injury caused by the accident but is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Ms Kook Hee Kim was involved in a motor accident on 27 January 2022. She was at the time of the accident 42 years of age.
The claimant says she injured her neck, back, both shoulders and left hip in the accident.
Ms Kim made a claim for personal injury statutory benefits against NRMA, the third-party insurer of the vehicle that hit her vehicle.
A medical dispute about neck and lower back surgery arose in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 5 June 2023, Medical Assessor Home determined the proposed neck surgery was reasonable and necessary treatment and the treatment was related to the injuries caused by the accident. Medical Assessor Home also determined the proposed lower back surgery was not related to the injuries sustained in the accident.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 7 September 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On
26 October 2023 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Kim’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
Section 3.24 (in Division 3.4) provides that an injured person is entitled to treatment and care expenses incurred as a result of the accident. However, s 3.24(2) says that:
“No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Dispute resolution
Part 7 of the MAI Act provides for the resolution of disputes that arise in motor accident claims. Claims disputes are determined by Members of the Commission, merit review matters are dealt with by the Commission’s Merit Reviewers and medical disputes are determined by the Commission’s Medical Assessors.
Division 7.5 provides for medical assessments.
Medical assessment and medical disputes are defined in s 7.17 as follows:
“medical assessment means an assessment of a medical assessment matter under this Division.
medical dispute means—
(a) a dispute between a claimant and an insurer about a medical assessment matter, or
(b) an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission.”
Section 7.1 defines a medical assessment matter as “a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part”.
Schedule 2 of the MAI Act, lists various matters declared to be a medical assessment matters and includes at cl 2(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).”[2]
[2] In the previous scheme, under s 58(1) of the Motor Accidents Compensation Act 1999, disputes about treatment were separated into two separate and distinct disputes – the first (s 58(1)(a)) about whether treatment was reasonable and necessary and the second (s 58(1)(b)) about whether the treatment is related to the injury.
The two disputes about Ms Kim’s neck surgery and the dispute about her lower back surgery are therefore medical assessment matters for the purposes of the dispute resolution provisions of Part 7.
ASSESSMENT UNDER REVIEW
Medical Assessor Home examined the claimant on 30 May 2023 and issued a certificate on 5 June 2023. He confirms at [2] that he was asked to assess:
(a) whether a left L5/S1 microdiscectomy is reasonable and necessary in the circumstances and whether that surgery relates to the injury caused by the accident, and
(b) whether a C5/6 and C6/7 anterior cervical discectomy and fusion is reasonable and necessary in the circumstances and whether that surgery relates to the injury caused by the accident.
Medical Assessor Home takes a history at [8] of the claimant’s previous motor accident on
14 March 2019 and the symptoms which developed after that accident. The claimant sustained injuries to her neck, back, both shoulders and left hip with hand and foot paraesthesia developing within several weeks of that accident. The claimant told Medical Assessor Home that these symptoms continued for a long period but had improved before the current accident and at the time of this accident she had no plan for surgery, no recent imaging and only intermittent neck and back pain.
At [9] Medical Assessor Home has a history of the current rear-end motor accident in Kingswood, that the claimant “collapsed” after the accident, was assisted by passers-by but then walked to Nepean Hospital.
Medical Assessor Homes takes a history of the symptoms and treatment at [10]:
(a) early symptoms of headache and dizziness, pain in the neck, upper back, lower back and shoulders;
(b) imaging and CT scans at hospital showed no factures and she was discharged from hospital with pain medication;
(c) her general practitioner (GP) Dr Lee referred her for physical therapy and further imaging studies;
(d) a referral was given to Dr Kim who arranged left C6 and right C7 and left S1 injections which gave no benefit and in fact made her pain worse, and
(e) Dr Kim has advised surgery.
The claimant has reported constant neck pain more severe on the left side, constant pain in the top of the left shoulder and left arm to the elbow with intermittent pain from the left elbow to the hand. She reported numbness in all digits of the left hand and less severe numbness in the right hand. Ms Kim also complained of low back pain which is constant and is also present in the left leg and right hip with numbness and weakness in the left limb.
At [13], Medical Assessor Home notes the claimant attends her physiotherapist weekly with limited benefit and she goes to hydrotherapy also weekly. The claimant takes Lyrica daily, paracetamol daily and medication for her diabetic condition.
The examination findings are recorded commencing at [16]:
(a) the cervical spine revealed no muscle spasm, dysmetria on only one plane of movement (rotation). There was no muscle wasting, normal power, reduced sensation in the entire right and left hand, and preserved reflexes [17];
(b) the shoulders had a full range of motion with pain at the extreme of both right and left internal rotation [18], and
(c) in the thoracolumbar spine there were no positive nerve root tension signs, normal power, no muscle atrophy and reduced sensation but in a non-dermatomal pattern [19]. Medical Assessor Home does not mention reflexes.
After reviewing the documentation at [21] and the radiology at [22] Medical Assessor Home determined at [23]:
(a) the claimant’s complaints of pain and numbness are similar to those complained of after the previous accident and they resolved after two years;
(b) the post-accident imaging shows pathology in the discs of the cervical and lumbar spine but there is no pre-accident imaging;
(c) there are no clinical signs of radiculopathy at the levels where there are impinging disc bulges;
(d) the claimant sustained a soft tissue cervical spine injury aggravating underlying cervical spondylosis, and
(e) the claimant sustained a soft tissue injury to the lumbar spine aggravating an L5/S1 discopathy.
Medical Assessor Home found at [23] that the lumbar surgery proposed would be aimed at relieving clinical signs of an S1 radiculopathy. However, as radiculopathy was not present when he examined the claimant, he considered the treatment proposed therefore was not related to an injury caused by the accident. He found at [24] the surgery not reasonable and necessary due to the lack of objective clinical signs of radiculopathy.
Medical Assessor Home also found at [23] that the claimant aggravated a pre-existing neck condition which has now caused constant (as opposed to intermittent) neck pain but noted there were no clear signs of a cervical radiculopathy. He found at [24] and that it was reasonable and necessary to have the surgery even though the cervical nerve root sleeve injections had not improved her symptoms or alleviated her pain.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits:[3]
(a) there are insufficient reasons for finding the neck surgery is reasonable and necessary and related to the accident;
(b) the Medical Assessor did not diagnose radiculopathy;
(c) the nerve root injections did not relieve the symptoms;
(d) the examination did not reveal radiculopathy;
(e) the records do not reveal radiculopathy at any time;
(f) while the Medical Assessor has referred to the criteria for an insurer to evaluate reasonable and necessary treatment, he has not explained and applied those criteria;
(g) by contrast the Medical Assessor made findings in respect of the lumbar surgery which did explain his decision in that matter, and
(h) the insurer repeats the submissions in respect to the inadequacy of reasons.
[3] The author of the submissions is not identified. The submissions are dated 26 June 2023.
In response to an email from the Commission when the application for review was lodged, the insurer advised the Commission it did not challenge the lumbar spine assessment and that it was free from error.
In submissions received by the Panel on 21 February 2024, the insurer submits at [5] that the claimant’s neck and lower back injuries are soft tissue and therefore threshold injuries. The insurer points to the records of Dr Lee from 22 December 2020 to 14 January 2021 refer to a loss of sensation in the hand and legs before the accident. The insurer also submits that Medical Assessor Home found no clinical signs of radiculopathy and that radiculopathy would be the reason to undergo surgery. The insurer notes at [6] the claimant has not had the surgery.
The insurer submits at [7(b)] that the photographs of the claimant’s vehicle -provided to the Panel by the claimant are unverified and undated.
Claimant’s submissions
The claimant says [9] the Medical Assessor determined there was an aggravation of pre-existing cervical spondylosis caused by the accident and [11] noted the claimant had exhausted all conservative treatment but continued to experience symptoms.
The claimant refers to a research study to say that the surgery contemplated by the claimant is an effective treatment for various cervical pathologies including spondylosis [13].
The claimant says the lumbar spine and cervical spine are separate body parts and were both injured and a finding in respect of treatment to one area does not depend on a finding of treatment in another area [14-16].
The claimant says at [17] that the Medical Assessor was not asked to determine whether there was radiculopathy or not within the meaning of the Motor Accident Guidelines (the Guidelines), but whether the surgery was reasonable and necessary.
Procedural matters – one review or two?
The Panel met on 5 December 2023 to discuss the proceedings. The Panel issued a report to the parties dated 7 December 2023.
The Panel noted that Medical Assessor Home was asked to determine two separate medical disputes, a dispute about lumbar spine surgery and a dispute about cervical spine surgery. The Panel observed that Medical Assessor Home found in favour of the claimant in respect of the cervical spine surgery and found in favour of the insurer in respect of the lumbar spine surgery. The Panel then noted that while the insurer sought a review of Medical Assessor Home’s decision about the cervical spine surgery, the claimant had not sought a review of the decision about the lumbar spine surgery.
The Panel advised the parties that it intended to proceed on the basis that the only matter in dispute between the parties was the medical assessment matter concerning the cervical spine surgery. The Panel sought confirmation of this approach from the parties.
The parties’ submissions about including the lumbar spine surgery
The claimant referred to s 7.26(6) which says:
“The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”
The claimant submits there was and is a dispute about the lumbar spine surgery. The claimant argues that pursuant to s 7.26(6) a review of a medical assessment is not limited to a review of only the aspect of the assessment alleged to be incorrect, but of all the matters with which the medical assessment is concerned. The claimant therefore submits the Panel should consider both the lumbar spine surgery and the cervical spine surgery in the current proceedings.
The insurer responded saying that the decision about the lumbar spine surgery was not challenged by it, and that the only matter for determination by the Panel is the cervical spine surgery. The insurer did not refer to s 7.26(6), any other legislative provision, any case law or otherwise address the claimant’s argument.
The Panel’s decision about assessing the lumbar spine surgery
The Panel is aware of the decision of the Court of Appeal in McKee v Allianz Australia Insurance Limited[4] where it was held that s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) required the review of a medical assessment to extend to the whole of the initial medical assessment, not just part (the disputed part) of the medical assessment.
[4] [2008] NSWCA 163.
The Panel also notes the decision of the Court of Appeal in Meeuwissen v Boden[5] where at [19] Justice Basten said (in relation to the equivalent of the delegate’s decision in this matter):
“… what must be incorrect in a material respect is ‘the medical assessment’ and not the certificate which results from the assessment. The subject matter of a medical assessment is a ‘medical dispute’: s 63(1). A ‘medical dispute’ is defined to mean ‘a disagreement or issue to which this Part applies’: s 57. The Part applies to a disagreement about one of the matters (referred to as ‘medical assessment matters’) set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d).”
[5] [2010] NSWCA 253.
Meeuwisen makes it clear that there is a distinction between the medical assessment of a medical dispute and the document that is issued at the conclusion of the medical assessment. The medical assessment involves the consideration of material, the examination of the injured person as well as the documentation of the outcome, namely the certificate and the reasons that are issued to the parties.
Both Meeuwisen and McKee involved judicial reviews of medical assessments concerning a single medical assessment matter, that is, a dispute about the degree of whole person impairment (WPI) of an injured person. The decisions addressed the issue of whether a review of WPI was limited to the one body part in dispute in the review or whether the review must consider all of the body parts that were originally referred for assessment.
Medical Assessor Home in the proceedings before him was not dealing with a single-issue medical assessment matter. He was dealing with two separate medical assessment matters referred to the Commission at the same time and in the same application albeit they both concerned treatment to be provided to the claimant. While the two separate disputes were determined following a joint consideration of the material, a single medical examination and decisions issued in a single document, the two separate disputes each had to be assessed and certificates given for each decision.
There are at least two possible interpretations of s 7.26(6) that the Panel has identified which might influence the scope of a review where there was an assessment of multiple medical assessment matters:
(a) the review is not limited to a review of only that aspect of the individual medical assessment matter (dispute) that is the subject of the application for review, but is to involve a fresh assessment of all of the aspects of that individual medical assessment matter (dispute). For example, if a dispute about surgery was referred for assessment at the same time as a dispute about WPI and only the “reasonable and necessary” part of the treatment decision is the subject of a review, the surgery dispute as a whole can be reviewed (including the relationship of the treatment to the injuries) but not WPI, and
(b) the review is not limited to a review of only the medical assessment of an individual medical assessment matter (dispute) referred for assessment, but is to involve a fresh assessment of all the medical assessment matters (disputes) the subject of the particular assessment document. In other words, if a dispute about surgery was referred for assessment at the same time as a dispute about WPI, and only the surgery decision was the subject of the review, the Panel can review and reassess all aspects of the surgery as well as the degree of WPI.
The current matter does not involve two different medical assessment matter types (e.g. WPI and treatment) but it does involve two different medical assessment matters of the same type (lumbar and cervical spine surgery).
There appears to be no decision from the Courts interpreting s 7.26(6), or its predecessor
s 63(3A), in circumstances where there are multiple medical assessment matters referred for assessment and where the certifications are included in the same document.
Noting the claimant’s submissions that there is still a dispute about the lumbar spine surgery and in order to avoid the prospect of a further medical assessment or further review, the Review Panel has determined it will proceed and assess both.
The parties were advised about this decision at the time of the second preliminary conference, in a report dated 13 February 2024.
Procedural matters - documentation
In the report and directions document issued to the parties on 7 December 2023, the Panel advised the parties it would be assisted by:
(a) any readily available photographs of the damage to the two cars involved in this accident, along with any reports of the accident from the insured;
(b) a complete set of Dr Lee’s records relating to the claimant from 1 July 2018 to date;
(c) clarification of whether the claimant has access to Medicare benefits or has private health insurance, and
(d) if applicable, a list from Medicare and a list from any private health insurer (noting the claimant’s previous visa status) of attendances on any health practitioner from 1 July 2018 to date.
The Panel was advised by the claimant on 19 January 2024 that she does not have access to Medicare (due to her visa status) and while she had private health insurance with BUPA she was unable to access her records due to an issue with the two factor identification process.
The insurer advised the Panel that in addition to Dr Lee, the claimant had sought medical attention from the Eastwood Gangnam Medical Centre. Records were provided.
The insurer was asked to confirm which injury was the non-minor (non-threshold injury) however, the insurer declined to do so saying that the claimant’s cervical spine and lumbar spine injuries were soft tissue injuries, and the issue of threshold or non-threshold injury is not relevant to the issues in dispute. Upon being pressed by the Panel, the insurer advised in a message uploaded to the portal on 21 February 2024:
“The Insurer submits the 2nd liability letter dated 12.09.2022 was issued based on the indications of possible radicular symptoms at the neck and lumbar spine. This was based on receipt of the initial clinical notes from Dr Hajun Lee, the signs of nerve compression reported at the MRIs of the neck at the left C6 nerve root and the left S1 nerve root at the lumbar spine and the specialist reports by Dr Jun Kim received around this time frame.”
The insurer advised it had not issued any further liability notices in the statutory benefits claim. However, NRMA provided a copy of a liability notice dated 5 July 2023 issued in
Ms Kim’s damages claim. The notice admits breach of duty of care and that the claimant sustained some injury, loss or damage as a result of the accident however denies liability as NRMA says, “it is continuing to investigate whether you sustained more than a “threshold injury” within the meaning of section 1.6 of the Act.” The insurer advised it was awaiting the outcome of the current review proceedings presumably so that it could finalise the decision about liability in the damages claim.
When the Panel prompted the claimant for copies of her BUPA records, the claimant produced records from 29 March 2022 onwards.
REVIEW OF THE EVIDENCE
Claim form and claim documents in the current claim
The police report[6] was made by the claimant at 8.14pm, on the night of the accident, and states that the accident had occurred at 2.45pm. The speed limit was 50kmph and the insured vehicle was said to be driving at 20kmph before the accident. Damage was said to be to the back of the claimant’s vehicle and the front of the insured vehicle.
[6] Page 32 of the claimant’s bundle.
The claimant has provided a statement[7] as to the accident, her attendance at hospital, her complaints to the hospital and the involvement of witnesses. The claimant says she was escorted to the hospital by these witnesses, but she does not know who they were. She says she gave the hospital a list of 13 areas of pain which she had written down and translated to hospital staff using her phone because she does not speak English. The claimant says she complained about severe neck pain.
[7] Page 24 of the claimant’s bundle. The statement is dated 12 September 2022 and while signed by the claimant does not include an interpreter’s attestation clause.
The claimant also says in her statement that she recovered from the 2019 accident at least a year before the current accident.
The claim form[8] was signed and dated 29 January 2022. It records the claimant’s age (she was 42 at the time of the accident) and her address (Penrith). The claimant disclosed a previous motor accident claim with GIO arising out of an accident on 4 March 2019.
[8] Page 33 of the claimant’s bundle.
The claimant says she sustained the following injuries:
“Surface of the head / skin feels kinda numb and severe migraine dizziness. Feeling drowsy. Neck stiffness, can’t turn my head. Shoulders / armpits hurt. Pain goes down from shoulders and arms, elbow, wrist and even fingers. Shoulder / wing – dead part is injured as well as my pelvis hurts so it’s difficult to stand up. I feel pins and needles on my feet and toes, knee aches. Fatigue hard to walk. It was unexperected impact so fasically I feel like my body is shattered.”
The claimant denied having an illness or injury affecting the same parts of her body at the time of the accident. She says she had two days off her full-time work as a Pastor of praise at the Penrith Citizen church where she says she earned $2,080 per fortnight.
The claimant provided photographs of what she says is her car after the accident. The photographs show a “tear” in the panel of the bumper bar panel on the driver’s side and the black plastic moulding beneath the bumper being dislodged. The insurer advised it did not have any photographs of either car, and said the authenticity of the photographs supplied by the claimant cannot be determined.
Appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. No one on the Panel is an accident reconstruction expert. If the photographs were of the claimant’s vehicle, the only conclusion the Panel would be prepared to make in the absence of expert evidence is that the damage to the claimant’s car is on the lower end of the severity scale. It is a little more than minor damage but not, in the Panel’s view significant or extensive damage.
Insurer decision making
NRMA accepted liability for the statutory benefits claim in a letter dated 14 February 2022.[9] In a letter dated 12 September 2022, the insurer accepted liability for payment of statutory benefits after 26 weeks. While not explicitly stated this would appear to be because at the time the insurer admitted Ms Kim was not wholly or mostly at fault and because at that time the insurer was of the view Ms Kim had sustained a non-minor (now non-threshold) injury.
[9] Page 39 of the claimant’s bundle.
On 21 June 2022 the claimant requested the insurer pay for the disputed surgery and on
30 June 2022, the insurer rejected the request. The reasons given by the insurer were that the lumbar and cervical spine surgery was not to treat radiculopathy (because there was no radiculopathy) but was proposed for pain management purposes. The insurer pointed out the claimant had not yet been referred for pain management treatment and her physiotherapist said her condition had not yet plateaued.
The claimant sought an internal review, and the insurer affirmed its original decision.
Previous GIO claim file – accident 14 March 2019
The police report from this accident indicates it was a late report (25 March 2019). The report also indicates that medical treatment was sought on 18 March 2019. The collision was said to have occurred between two vehicles and it was said to be a rear end collision.
The claimant completed a claim form on 2 April 2019 noting the accident occurred at a roundabout and that the vehicle she was in was hit twice. The claimant complained of:
“head dizziness, pain in the neck, shoulders, back upper and lower, waist, tailbone, pelvic bone, left arm, both hands, feet, fingers and toes are numb. A slight bloody discharge from my vagina.”
The claim form gave no details of employment or employers.
Dr Lee completed a questionnaire for GIO on 27 April 2019.[10] He agrees he is the nominated treating doctor, and that the claimant first attended his practice on 13 March 2019.
[10] Page 21 of the insurer’s additional bundle.
He diagnosed “soft tissue injuries but limb symptoms need to be further observed to rule out radiculopathy”. He mentioned symptoms of reduced neck range of motion and decreased sensation in the lower limbs. He identifies the whiplash injury as a Grade II disorder.
Dr Lee said he had suggested Voltaren and Panadol (which the Panel notes are both over the counter medications) and that the claimant did not report any symptoms present at the time of the accident and that no pre-existing factors or injuries were declared. Dr Lee said the injuries were restricting the claimant’s functional capacity and limiting her pre-injury working hours.
On 1 May 2019, Ms Kwon, psychologist sought approval from GIO for eight counselling services. It was noted that the claimant had an adjustment disorder with anxiety and her husband had died in October 2016 in a car accident. The claimant was said to be working 20 hours over four days at a Sushi Train restaurant and attending a cookery college two days per week. The counselling was approved.
Physiotherapy requests refer to neck, back and hip pain with “paraesthesia on hands and feet, decreased sensation on left leg and right medal thigh”. In an email from the physiotherapist to GIO, Mr Oh says “main problem at this stage is radicular pain reported by patient which has been consistent for 4 – 5 months.”
In the fourth request for physiotherapy is the suggestion the claimant had quit work due to her physical injuries and the work environment, but she was still experiencing numbness down the shoulder and left arm. Pain was also reported still going down the left leg.
In July 2019 Dr Lee requested cervical and lumbar spine MRIs, more physiotherapy (from his practice) and it appears the claimant was, at around this time, advised that GIO had formed the view she only had “minor injuries” and her benefits ceased.
It appears that about a year later, the claimant obtained legal advice and after obtaining copies of the insurer’s correspondence, on 21 July 2020 Ms Kim’s solicitors requested internal review of the insurer’s decisions. GIO accepted the late applications for internal review and:
(a) on 31 July 2020 Ms Balogh affirmed the minor injury decision;
(b) on 4 August 2020 Ms Balogh affirmed the decision to deny the MRIs of the cervical and lumbar spine due to an absence of “current verified neurological symptoms”, and
(c) on 5 August 2020 in a separate decision Ms Balogh affirmed the decision to refuse payment for additional physiotherapy noting that 25 sessions of physiotherapy had already occurred, and a year had elapsed since the last treatment and there was no evidence suggesting a need for ongoing physiotherapy.
It would appear an application was then made to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) for resolution of all three disputes.
Medical examinations were arranged with Medical Assessors Cameron (for physical injuries) and Friend (for psychological injuries). The outcome of the physical minor injury dispute was that the neck and lower back injuries were found to be soft tissue and minor and the physiotherapy and scans were refused. The psychological injury was found to be an adjustment disorder with anxious mood (in partial remission). It does not appear that any application for review was made in respect of either of those decisions.
Treating records
Kang Nam Surgery
The claimant has sought treatment from the Kang Nam Surgery in Eastwood both before and after the car accident.
The notes show that between 25 September 2019 and 30 November 2023 the claimant attended 15 times. There is no mention of either car accident in these notes. There is a reference to diabetes diagnosed 11 years ago and regular prescriptions were provided often with no further details.[11]
[11] The Panel notes this may be the medication concerning the claimant’s diabetes (see 25 September and 26 November 2019) as Metformin and Crestor were mentioned on 23 January 2020.
Dr Lee of J Medical and Cosmetic centre
The claimant attended Dr Lee 10 times after her first accident up to 21 August 2019. Between August 2019 and December 2020, there is no record of Ms Kim attending Dr Lee. In his note of 22 December 2020, Dr Lee refers to the claimant working as a piano teacher. He had circled Ms Kim’s left and right hands on a pain chart with an annotation, “no change in sensation”. He refers to the claimant having Mobic, physiotherapy and that the claimant’s case (regarding her 2019 car accident) had been “closed” and “on litigation”. She was said to be managing with acupuncture and three weeks previously her symptoms had worsened.
On 14 January 2021 the claimant attended again on Dr Lee with “better back pain” but had one to two weeks of reduced peripheral sensation to actual touch in the hand and leg. Mobic was effective but she was sleepy and there was to be a review in four weeks. There were however, no further attendances until after the current accident.
The claimant attended on 29 January 2022, two days after the accident. Dr Lee has recorded upper and lower limb paraesthesia and limited sit /stand tolerance. The attendance on
1 February 2022 has a diagram completed which has marked upon it Spurling, straight leg raise (SLR) and slump test all positive. The neck and trapezius areas were shaded as was the upper and lower back, both hips, the left leg, the arm and the right hand was said to have loss of sensation and sensitive to light touch.
On 22 February 2022 it is recorded that Ms Kim had headache and neck pain which had resolved. On 1 March 2022, the body chart indicates areas of concern were the back of the neck, left shoulder and left arm and hand as the source of pain, right arm, upper back, lower back and buttocks, both knees and both feet. This pattern of complaints continues. In May 2023 the focus of the complaints shifted more towards the lower back.
Dr Kim – neurosurgeon
The claimant was referred to Dr Kim and was first seen on 4 May 2022.
Dr Lee’s referral to Dr Kim refers to “post MVA” and to the MRIs and provides a list of her medications and allergies and gives a history of diabetes since 2016. Dr Kim has a history of the claimant being healthy. He does not appear to have a history of the claimant’s high blood pressure (as per the Kang Nam records). He has no history of the previous accident. He has a history of the car she was in being “significantly damaged”. He says she sustained a “severe” whiplash injury to her neck with “significant” pain in her lower back and shoulders. He has a history of “prior to the accident she did not complain of any lower back or neck symptoms”. The Panel notes that he clearly has at this time an incorrect or incomplete history.
There was some numbness in what he identified as a left C6 and right C7 distribution and left S1 distribution. Biceps reflexes were depressed in the left arm and reflexes in the left ankle were depressed but neurologically otherwise the examination was normal.
He reviewed the scans and noted the presence of the disc bulges at C5/6 and C6/7 and L5/S1 and he noted the compression. He said:
“I have no doubt that Mrs Kim’s severe symptomatology is secondary to the motor vehicle accident on 26 January 2022.”
He recommended injections and planned to review her after they were done.
On 20 June 2022, Dr Kim reported to Dr Lee that the injections gave no significant improvement. He considered she had “exhausted her conservative options” and that she should have a microdiscectomy at L5/S1 and fusion in the cervical spine. A similar letter was written on 1 July 2022.
On 31 August 2022 he wrote to Dr Lee having read the Medical Assessor’s reports (this appears to be a reference that would include the report of Medical Assessor Cameron) and disagreed with it maintaining his view that the current accident of January 2022 has caused the radiculopathy in both the lumbar and cervical spine.
On 20 September 2022, Dr Kim wrote to Sally Lim in answer to an email clarifying his letter of 31 August 2022. He stated that he agreed the accident in 2019 was minor and that the cause of her significant injuries was the accident in 2022.
Radiology
On 27 January 2022 the claimant had a CT scan of her pelvis and lumbar spine due to a history of pain in the pelvis and lumbar spine with midline tenderness. This showed “mild posterior disc bulges at L4/5 and L5/S1 without significant spinal canal narrowing” and no foraminal issues. There was no abnormality in the pelvis.
The claimant also had a CT of her brain as the claimant reported hitting the back of her head and she was complaining of dizziness and some nausea. No abnormality was detected.
MRI scans were undertaken on 22 February 2022. There were broad-based left sided disc protrusions at the C4/5 level with left C6 nerve root impingement and right sided foraminal disc protrusion with impingement at the right C7 nerve root.
In the referral for the MRI completed by Dr Lee he says, “neck and back pain, Spurling test / SLUMP / SLR positive with decreased sensation in left arm hand and leg and foot while hypersensitive to light touch.” There was no significant finding at the thoracic spine and in the lumbar spine a mild bulge was detected with disc desiccation at L4/5 and at L5/S1 a disc protrusion with partial impingement of the left S1 nerve root.
Other assessments
Medical Assessor Cameron examined the claimant on 26 April 2021 in respect of the previous accident and claim.
He has a history of the claimant working as a cook at the time of the accident, leaving that job in 2020 and that she is working as a church music manager 35 hours a week.
The claimant said she saw Dr Lee on 18 March 2019 and had 10 sessions of physiotherapy from Mr Oh and she has persisting symptoms with occasional acupuncture.
The claimant reported at that time (eight months before the current accident) neck pain with some radiation in the left trapezial region, low back pain with some left buttock pain and intermittent pins and needles in the fingers of both hands and in her feet and right knee.
On examination Medical Assessor Cameron recorded restriction of movement in the neck which was mild and symmetrical, but he found no spasm guarding or non-verifiable radicular complaints and says, “there were no neurological abnormalities in the upper extremities”.
In the thoracic and lower back motion was reduced by 20% in all planes but there was no spasm, guarding, dysmetria or non-verifiable radicular complaints. There were no neurological symptoms in the lower extremities and nerve root tension signs were negative.
He found the claimant sustained soft tissue injuries to the neck and lower back. He found no radiculopathy and said the symptoms in her limbs did not indicate injury in those body parts and were “non-specific and do not follow a radicular pattern”.
Medical Assessor Friend has a history of the claimant’s pre-accident diabetes, the death of her husband and migration and visa issues. In May 2020 the claimant altered her visa conditions and began working in a church with the choir, playing the piano and teaching Korean.
The claimant was taken after the accident to the train station and went home where her father collected her. She said she felt weak and in pain and the day after the accident she was too weak and sore and could not work. She contacted her usual GP but could not get an appointment. She told her employer she wanted to make a claim under workers compensation and was then terminated from employment and threatened with being reported to the Department of Immigration because she was working 25 hours a week which was more than she was supposed to work.
Ms Kim reported a further motor accident when she rear-ended the vehicle in front, but said she developed no new conditions.
The claimant reported continuing pain at the back of the neck, left shoulder, left wrist and left hip with pain in the lower back around the coccyx. She said she gets pins and needles in her hands. She was taking Panadol and Voltaren when the pain was bad.
She said she can dress, prepare meals, wash clothes and do the shopping but with pain.
She was working for the church full time without difficulty.
Medical Assessor Friend diagnosed an adjustment disorder with anxious mood which he certified was a minor (now threshold) injury.
RE-EXAMINATION FINDINGS
Ms Kim attended the appointment with Medical Assessor Dixon on 9 April 2024. She was accompanied by a Korean Interpreter. Rapport was difficult to establish at the beginning and obtaining a history was difficult. However, as the examination continued the claimant settled and became more relaxed. She co-operated fully with the physical examination.
History of the accident
This 44-year-old claimant stopped her sedan for a person to cross in front of her when her Toyota Camry sedan was hit from behind. She was wearing a seat belt and airbags did not deploy. She denied hitting her head or losing consciousness. She had no amnesia and could remember the accident details.
The claimant was asked about any previous musculoskeletal symptoms or accidents. She described the roundabout collision of March 2019 and said she hurt her lower back and neck and developed other symptoms. She said eventually her symptoms settled then resolved.
Ms Kim said her early symptoms after the current accident were of pain in her neck and upper back with this pain radiating into her shoulders. She had pain in her lower back. She subsequently had imaging studies arranged by her GP who then referred her for physiotherapy.
Sometime later, she developed pain radiating down both arms with intermittent paraesthesia in the right hand, more marked in the right thumb, and intermittent paraesthesia in the left hand, more marked in the middle finger. She had this pain after the March 2019 accident. She also described persisting pain in her lower back with left buttock sciatic symptoms including burning pain radiating down the back of the thigh and to the left foot. The burning sensation extends to the left great toe. She said she did not have this after the March 2019 accident.
Ms Kim was referred by her GP, Dr Lee to Dr Kim, neurosurgeon, after which she had left C6 and right C7 and left S1 perineural cortisone injections. These were not associated with any benefit (Medical Assessor Home had a history of them actually making her symptoms worse). The claimant had physiotherapy which was ongoing again without sustained benefit and she has required ongoing analgesia.
Dr Kim recommended that the claimant have left L5/S1 microdiscectomy for her lower back pain and left sciatic pain and that she has C5/6 and C6/7 anterior cervical discectomy and fusion (ACDF), relating both procedures to the subject motor vehicle accident.
Current symptoms
Ms Lim reported pain in her neck more marked on the left with stiffness and difficulty turning her head and difficulty looking to the side while driving, reverse parking, changing lanes and checking the blind spots. She reports pain in the trapezius muscles more marked on the left and reported burning sensation only in the hands, most marked in the right thumb and the left middle finger. The Medical Assessors noted this does not correspond to an appropriate dermatome.
Ms Lim also reported persisting pain in her lower back with lumbar stiffness. Recurrent bending and stooping aggravates her back pain as does heavy lifting and carrying. The pain was described as mainly in the left buttock extending to the thigh and a burning sensation extending to the left great toe.
Current and proposed treatment
Ms Lim is continuing with physiotherapy and up-to-date physiotherapy notes have been made available. Ms Lim says physiotherapy treatment is not providing sustained benefit. She is attending hydrotherapy once a week which also does not provide sustained benefit.
Ms Lim says she takes Lyrica for neuropathic pain, Panadol and Panamax for pain relief, Xigduo for diabetes, Rosuvastatin for raised cholesterol, Sertraline and Prazosin for anxiety and Pantoprazole for gastric pain.
The claimant reported that she has recently returned to driving and now works part-time at the Penrith Citizen Church as a minister.
Examination
On examination she was 153cm tall and weighed 73kg.
Cervical spine
There was stiffness of her cervical spine with movements measured as follows:
(a) flexion decreased by one third and pain on neck extension which was decreased by one half;
(b) lateral rotation decreased by one third on both sides, and
(c) lateral flexion decreased by one half bilaterally.
There was tenderness of the trapezius muscles more marked on the left and tenderness of the lower cervical facet joints. While the cervical foraminal compression test was not positive, the brachial plexus stretch test was positive but the supraclavicular brachial plexuses were non tender.
Ms Kim had symmetrical reflexes in both upper extremities. There was no wasting of either arm above or below the elbows with the upper arms measuring 31cm on both sides, 10cm above the elbow crease and 22cm bilaterally at a point 10cm below the elbow crease.
There was a positive Tinel’s sign over the median nerve of both wrists and a positive Phalen’s test. Her thenar power was grade 5 out of 5 as was her intrinsic power in both arms. Grip strength in the right hand was grade 5 out of 5 and the left-hand grade 4 out of 5. She is right-handed.
There was sensory alteration in the thumb, index and middle fingers of both hands more marked in the right thumb and in the left middle finger at grade 4 out of 5.
Clinically, the Medical Assessors on the Panel are of the view that all of these signs suggest that the claimant has signs of carpal tunnel syndrome in both arms but not radiculopathy.
Lumbar spine
In the lumbar spine, Ms Kim’s flexion was decreased by one half with slow and jerky recovery with erector spinae muscle spasm on the left with pain on back extension which was decreased by one half and lateral flexion to the right by one quarter and that to the left by one third. There was tenderness adjacent to the lumbosacral facet joint. Her straight leg raise on the left was 60 degrees, associated with low back pain and left sciatica and she had a positive sciatic nerve root stretch test. Her straight leg raise on the right was 70 degrees and associated with low back pain. Her sciatic nerve root stretch test was negative on the right. Both Babinski signs were negative. Her knee jerk reflexes were present on both sides as was her right hamstring and right ankle jerk. However, her left medial hamstring and left ankle jerk reflexes were depressed. Her power distally was grade 5 out of 5 on both sides. There was some sensory change on testing in her lateral leg extending to her left great toe in an L5 distribution.
She had great difficulty sitting in the consultation room due to back pain and difficulty getting on and off the examination couch due to back pain. She had difficulty walking because of left sciatic pain associated with a limp and difficulty with toe and heel walking.
Her left thigh measured 39cm, 10cm above the knee and the right thigh measured 41cm and her left leg 10cm below the knee, measured 31cm and 32cm on the right indicating muscle wasting in the left leg.
Investigations
An MRI of the cervical spine on 22 February 2022 showed a left paracentral disc protrusion at C5/6 impinging on the left C6 nerve root with mild left foraminal stenosis and at C6/7 there was mild posterior disc bulge with right foraminal disc protrusion impinging the right C7 nerve root.
MRI of the lumbar spine on 22 February 2022 showed a broad based left paracentral disc protrusion at L5/S1 with impingement on the left S1 nerve root and lateral recess.
Ms Kim’s up-to-date physiotherapy notes from 8 February 2023 until 21 March 2024 indicated that there has been deterioration in her lower back pain and increased erector spinae muscle tone in the lower back and gluteal medius tone.
The photographs showing damage to her Toyota Camry where it was rear ended were shown to the claimant and she identified her car and the post-accident damage. There is mild indentation of the region of the rear bumper bar with some displacement downwards of the chassis covering at the back.
CONSIDERATION OF THE ISSUES
Principles concerning treatment “related to the injuries caused by the accident”
As the insurer is not liable to pay statutory benefits if the treatment in dispute does “not relate to” the accident caused injuries this clearly requires the Panel to determine what were the injuries caused by the accident before determining whether the treatment relates to them.
Proceedings concerning treatment disputes do not concern the assessment of WPI therefore the provisions about causation of impairment in the AMA4 Guides and Chapter 6 of the Guidelines do not directly determine the issue currently before the Panel. While Justice Wright in Briggs v IAG Ltd[12] found Chapter 6 of the Guidelines applied to a dispute under Chapter 5 about minor (now threshold) injury, the Panel is not aware of any cases that apply the Guidelines relevant to causation of permanent impairment to disputes about treatment.
[12] [2022] NSWSC 372 (Briggs No 2).
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[13] where the test of causation of surgical treatment was determined in a matter under the previous scheme and where the claimant had three motor accidents. 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[14]. 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.”
[13] [2018] NSWSC 1710.
[14] Emphasis added.
Principles concerning “reasonable and necessary” treatment
The Panel notes Medical Assessor Home refers to a SIRA resource titled “reasonable and necessary criteria”. There is no citation for this document, no hyperlink to any website where it might be found and no copy of it provided.
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”. This 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”. See for example the discussion of the meaning of “reasonably necessary” in Clampett v WorkCover Authority of NSW,[15] Grove J 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.”
[15] [2003] NSWCA 52.
In Diab v NRMA Ltd[16] 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.
[16] [2014] NSWWCCPD 72.
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Ms Kim’s surgery is “reasonable and necessary”.
Principles of “in the circumstances”
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant in the proceedings before the Panel.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. It may be reasonable and necessary for a claimant to have treatment such as surgery to alleviate symptoms from an injury or condition but if that injury or condition was not caused by the accident it will be disallowed on the basis it does not relate to the injury caused by the accident.
Should Ms Kim’s cervical spine surgery be allowed?
What injury did the claimant sustain to her neck?
The insurer’s liability notices do not dispute that some form of neck injury occurred in this accident. What is in dispute is the nature and extent of that injury.
The MRIs show disc lesions at C5/6 and C6/7.
It is the clinical judgment of the medical members of the Panel that the mechanics of the motor accident of January 2022 could have caused these lesions.
The Panel has considered whether the accident did cause these lesions. While the claimant did have symptoms in her neck after the 2019 accident, there are no pre-accident scans to suggest the lesions were present at that time. There are gaps in her medical attendances (August 2019 to December 2020 and then January 2021 to January 2022) suggesting an absence of symptoms significant enough to warrant medical attention from Dr Lee who she has consulted for her musculo-skeletal issues. The Panel notes there was no referral to a specialist and no radiological investigations and some physiotherapy.
It has been two years since the car accident in January 2022 and the records before the Panel indicate the claimant has been consistently complaining of neck pain with other symptoms since then. The claimant has had radiology and has been referred to a specialist, has had physiotherapy and hydrotherapy with limited if any benefits. This suggests that disc damage was done in the accident, or that already vulnerable and damaged discs were further damaged in the 2022 accident.
The Panel is therefore satisfied that the claimant sustained a soft tissue injury to her neck in terms of a partial rupture of the discs at C5/6 and C6/7 or the further partial rupture of the discs at these levels.
The Panel is not satisfied, on the basis of Medical Assessor Dixon’s re-examination findings, that the claimant has sustained a nerve root injury currently manifesting in two of the five recognised signs of radiculopathy. While there have been radicular symptoms reported by the claimant there is insufficient evidence to establish radiculopathy at any time since the accident. The Panel also notes that the cervical spine injections did not result in any appreciable benefit to the claimant. The Panel would expect some benefit from the cervical spine injections if she had radiculopathy. Finally, the Panel notes Medical Assessor Home’s examination findings did not establish radiculopathy in June 2023.
While the claimant does not demonstrate radiculopathy in the upper limbs at this re-examination, the clinical findings indicate her upper limbs do show features of bilateral carpal tunnel syndrome.
Is the cervical spine surgery related to the injuries sustained in the accident?
The Panel is satisfied that the cervical spine surgery proposed by Dr Kim is related to the injuries sustained in the accident. The claimant has pain in her neck and other symptoms.
Dr Kim has considered the claimant’s history and noted the conservative treatment offered to the claimant to date. He has considered the radiology and found disc pathology in the neck. The surgery Dr Kim is proposing would address this condition.
Is the cervical spine surgery reasonable and necessary in the circumstances?
In the absence of confirmed radiculopathy in the upper extremities, it is the clinical judgment of the medical members of the Panel that the proposed cervical spine surgery is not reasonable and necessary in the circumstances of this claimant, because it is probable that some of the symptoms in both her hands are due to carpal tunnel syndrome. Carpal tunnel syndrome is not generally caused by trauma but is caused by repetitive movements. Carpal tunnel symptoms are not relieved by cervical spine surgery.
In the absence of nerve conduction studies excluding the presence of carpal tunnel syndrome, the Panel is of the view the proposed surgery is not reasonable and necessary in the circumstances.
Should Ms Kim’s lumbar spine surgery be allowed?
What injury did the claimant sustain to her lower back?
Again, the insurer’s submissions do not take issue with the fact that the claimant sustained an injury to her lower back in the accident, but the insurer does dispute the nature and extent of the injury.
The Panel notes the claimant had a previous motor accident in which she complained of lower back pain and some symptoms similar to those complained of after the current accident however these injuries were assessed by Medical Assessor Cameron who found soft tissue injuries only and no signs of radiculopathy in April 2021.
The MRI from February 2022 shows a left sided L5/S1 disc protrusion. It is the clinical judgment of the medical members of the Panel that, having considered the video that the mechanics of the accident and the likely forces involved in the motor accident of January 2022 could have caused this protrusion.
The claimant has consistently complained of lower back pain since the accident, has had the pain investigated and been referred for allied health and specialist treatment. Ms Kim demonstrated at the re-examination by Medical Assessor Dixon that she has left L5/S1 radiculopathy with decreased L5 (medial hamstring) reflex and S1 (ankle) reflex with sensory loss extending to her left great toe which conforms to an L5/S1 dermatome. Medical Assessor Dixon also found a positive sciatic nerve stretch test and restricted straight leg raise. Finally, Medical Assessor Dixon also recorded a difference in the circumference of the left leg (when compared to the right) which is also a sign of radiculopathy. None of these signs were present on testing after the 2019 accident.
The Panel notes that when examined by Medical Assessor Home, no radiculopathy was found. There is no evidence before the Panel of a further event or subsequent injury. The medical members of the Panel note that in their clinical experience, disc bulges can progress and symptoms do fluctuate over time as the extent of the nerve root compression develops and the level of irritation varies.
The Panel is therefore satisfied that the claimant sustained in the accident a soft tissue injury including a disc bulge which has caused nerve root injury manifesting in radiculopathy.
Is the lumbar spine surgery related to the injury caused by the accident?
Dr Kim has considered the claimant’s history and noted the ineffective treatment offered to the claimant to date. He has considered the radiology and found a disc bulge. The surgery
Dr Kim is proposing would address this condition.
The Panel is satisfied that the lumbar spine surgery proposed by Dr Kim is related to the injuries sustained in the accident. The claimant has pain in her lower back and has developed radiculopathy after the accident as a result of her injuries. Radiculopathy is the manifestation of a nerve root injury, and the injury is treated by surgery such as that proposed which is aimed at decompressing the nerve by removing the cause of the compression which in this case is the disc material bulging at L5/S1.
Is the lumbar spine surgery reasonable and necessary in the circumstances?
With respect to the lumbar spine, the examination by Medical Assessor Dixon confirms that Ms Kim does have left-sided radiculopathy and the left sided L5/S1 micro discectomy is reasonable and necessary treatment for that condition because:
(a) the Medical Assessors on the Panel say it is appropriate treatment aimed at removing the source of the compression and irritation of the exiting nerve root and eliminating or reducing pain;
(b) the claimant has had physiotherapy and hydrotherapy and injections which have not helped, and
(c) the potential effectiveness of the treatment is significant in that, the Medical Assessors are of the view it should reduce or eliminate the claimant’s pain and improve her functionality.
CONCLUSION
The Panel is satisfied that, on the information before us:
(a) the left L5/S1 microdiscectomy proposed by Dr Kim relates to the injury caused by the accident and is reasonable and necessary in the circumstances, and
(b) the C5/6 and C6/7 anterior cervical discectomy and fusion relate to the injury caused by the accident but are not reasonable and necessary in the circumstances.
As the Panel has come to a different conclusion to Medical Assessor Home, it follows therefore that his certificate must be revoked.
0
7
0