Insurance Australia Limited t/as NRMA Insurance v Tsesmetzis
[2024] NSWPICMP 837
•9 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Tsesmetzis [2024] NSWPICMP 837 |
| CLAIMANT: | Eleftheria Tsesmetzis |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 9 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; treatment dispute; whether request for a new mattress is reasonable and necessary and related to the injury caused by the motor accident; claimant found to have suffered various musculoskeletal injuries as a result of the accident, including to cervical, thoracic and lumbar spine; on balance of probabilities fracture to the coccyx not caused by the motor accident; Held – original certificate revoked and found the mattress is related to the injuries caused by the accident but is not reasonable and necessary; replacement of mattress does not represent accepted treatment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certficate issued by Medical Assessor Rosenthal dated 6 June 2024. 2. Certifies that the treatement in dispute relates to the injury caused by the motor accident. 3. Certifies that the treatment in dispute is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Ms Eliftheria Tsesmetzis (the claimant) is a 62-year-old woman that was involved in a motor vehicle accident occurring on 10 April 2022. The claimant was walking her dog along a footpath in when a vehicle reversed out of driveway and hit the claimant. As a result she fell and she was taken to St George Hospital by her husband.
The claimant alleges suffering injuries to various parts of her body including the head, neck, back and left shoulder. She lodged an application for personal injury benefits (claim form) with the insurer of the vehicle involved, Insurance Australia Limits t/as NRMA Insurance (the insurer).
Ongoing liability for statutory benefits payable pursuant to the Motor Accident Injuries Act 2017 (MAI Act) has been accepted by the insurer. However, a dispute has arisen between the parties as to the provision of a mattress to the claimant.
That dispute was referred to the Personal Injury Commission (Commission) for determination and Medical Assessor Thomas Rosenthal issued a determination dated 6 June 2024 certifying the that “the request from Momentum Rehab” for the purchase of a queen-sized mattress relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances.
The insurer lodged a review application in respect of certificate of Medical Assessor Rosenthal and by way of determination dated 22 July 2024 the President’s delegate determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect[1]. The dispute has been referred to the Review Panel (Panel) for determination.
[1] Section7.26(5) MAI Act.
The Panel met via Microsoft Teams on 26 September 2024 and determined that a re-examination of the claimant was not required on the basis that the parties’ review submissions did not appear to take issue with the clinical findings of Medical Assessor Rosenthal. In addition, the Panel indicated that material provided included ample clinical notes and radiological reports upon which to make a determination. However, the parties were provided with the opportunity to indicate whether there was any dispute as to the clinical findings of Medical Assessor Rosenthal, and if any dispute exists whether the Panel’s view that a re-examination was not required was agreed to.
Both parties responded via the Commission portal. The claimant’s representative indicated that the clinical findings of Medical Assessor Rosenthal were not disputed. The insurer’s representative indicated that there was no objection to the Panel proceedings without an examination.
The Panel reconvened via Microsoft Teams on 21 October 2024 and confirmed that a re-examination of the claimant was not required.
LEGISLATIVE FRAMEWORK
Pursuant to Part 3 of the MAI Act the insurer is liable for the payment of statutory benefits, including treatment and care benefits as set out under Division 3.4.
Section 3.24(2) of the MAI Act provides that:
“No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
The test of whether the subject treatment and care is reasonable and necessary is generally considered a stricter test than the corresponding test in the New South Wales workers compensation benefits scheme that requires a worker to establish that the treatment is “reasonably necessary”.[2]
[2] Section 60 of the Workers Compensation Act 1987.
The cases relating to the workers compensation scheme, whilst not binding, provide some guidance. In Diab v NRMA Ltd 2014 NSWWCCPD 72 (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
The words “did not relate to the injury resulting from the motor accident” contained in s 7.26 of the MAI Act require the Panel to determine the issue of causation of the subject injury before determining whether the treatment relates to that injury.
The Panel has considered the case of AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 (Phillips), when determining the issue of whether the treatment is related to the injury caused by the motor accident. The case of Phillips involved a claimant involved in three separate motor accidents and the Court, dealing with the issue of causation for surgical treatment found at [28] and [29]:
“The requirements in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
I accept the plaintiff’s submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Rosenthal took a history that the claimant was unable to sit for long, that she had tailbone pain which was constant and rated about 7 out of 10. She is restricted with sitting and walking and she has to constantly change positions.
The claimant was at the time still going through a pain management course and seeing a psychologist and an exercise physiologist weekly.
On examination, the claimant was noted to walk with a normal gait and posture and did not appear to be in distress. The claimant’s neck exhibited a full range of motion of the neck with no particular tenderness, spasm or guarding. No neurological deficits in the upper limbs were noted.
Some slightly mid back tenderness was noted. In respect of the lumbar spine, the tailbone was noted to be overly tender to light touch. No spasm or guarding was noted but a reduced lumbar movement with flexion only to two-thirds of normal was noted and extension to one-third of normal. Other lumbar movements were reduced by one quarter.
The claimant was able to get up on her heels and toes and squat. Straight leg raising was 70 degrees on both sides. Laseque’s signs were noted as negative and no neurological deficient were noted in the lower extremities.
Medical Assessor Rosenthal that the claimant aggravated pre-existing degenerative changes in her spine as result of the motor accident and may have developed a fracture dislocation of her sacrum or coccyx.
The Medical Assessor found:
“In my view, based on the available information, I believe that the purchase of the queen mattress is reasonable and necessary. There appears to be documented independent verification of this from the occupational therapist and it is likely that it will reduce Ms Tsesmetzis’ symptoms and allow her to return to work. It also will have benefits in reducing her pain levels as well as addressing some mental health issues. The mattress can be considered to be treatment. It is also likely to improve her recovery.”
SUBMISSIONS
Insurer’s submissions to Medical Assessor Rosenthal dated 7 March 2023
The insurer disputes that the requested mattress is reasonable and necessary. In support of this position the insurer notes the following at p 39:
“(a) The occupational therapist at Momentum Rehab had had initially noted that they preferred to first address other factors contributing to Mrs Tsesmetzis’ symptoms prior to considering a change of mattress, as assessment confirmed that her symptoms were aggravated by walking her dog and her work duties. In Initial Assessment Report dated 28 October 2022 it was noted that Mrs Tsesmetzis did not feel this approach was practical as she was overwhelmed and anxious about continuing to sleep in the spare bedroom and the impact it would continue to have on her relationship with her husband.
(b) In December 2022, an ergonomic assessment was conducted, and multiple issues were identified in Mrs Tsesmetzis’ workplace set up. Recommendations were provided to reduce the risk of aggravation of her symptoms. The insurer considers that sufficient time has not lapsed to assess the benefit of any recommended modifications.
(c) In Movement 101 Progress Report dated 27 February 2023, it was noted that Mrs Tsesmetzis’ symptoms had been decreasing; however, her sleeping habits were yet to improve, and if anything, symptoms had increased over the prior 2 weeks since moving back to her own bed.
(d) A/Prof. Paolini in reports dated 9 February 2023 and 2 March 2023 advised Mrs Tsesmetzis to use icepacks and topical diclofenac, avoid aggravating activities, and begin cervical spine and thoracic spine range of movement and self-resisted strengthening as well as one-leg quarter squat strengthening exercises. He recommended acupuncture and gentle spinal mobilisation at physiotherapy to assist with her symptoms. The insurer notes that A/Prof. Paolini did not make any suggestion and/or recommendation that her current mattress was aggravating her symptoms and that it should be replaced.”
The insurer therefore submits that there is limited evidence that the mattress will assist with pain management.
Insurer’s review submissions dated 20 June 2024
The insurer submits the Medical Assessor failed on a number of grounds, including a failure to provide sufficient reasons as to why it was determined the mattress is reasonable and necessary, given the lack of reference to any criteria as listed in the case of Johnston v QBE Insurance (Australia) Limited [2023] NSWPICMP 21 (Johnston).
The insurer further submits that the Medical Assessor failed to indicate why he preferred the opinion of Anoush Sarkissian of Momentum Rehab when all other treating practitioners did note state that the provision of a new mattress was reasonable and necessary.
In addition, it is submitted that the Medical Assessor failed to provide reasons as to inform the reader how the determination for a new mattress was consistent with the principles of the Clinical Framework for the Delivery of Health-Services in addressing chronic pain and the mental health symptoms.
Lastly, it is submitted that the Medical Assessor failed to provide reasons as to why he considered the provision of the mattress was reasonable and necessary given the lack of high quality studies to support such a treatment.
Claimant’s review submissions dated 10 July 2024
The claimant rejects any suggestion that the requested mattress does not constitute treatment and care for the purposes of the MAI Act. The claimant submits that a mattress would fall under the “aids and appliances” inclusion in the definition contained within s 1.4 of the MAI Act.
The claimant submits that the case of Diab which was referred to in the decision of a Review Panel in the matter of Johnston sets out a number of factors that a relevant to, but not determinative in coming to a determination. It is noted by the claimant, however, that the case of Diab is a workers compensation case that applied a different test being “reasonably necessary” as opposed to the subject test of “reasonable and necessary”.
The claimant agrees that the case of Diab can be used as a guide.
With reference to the recommendation by Anoush Sarkissian of Momentum Rehab, the claimant notes that she assessed the claimant from time to time (and not just a single brief occasion) and made the recommendation at the insurer’s request. It is noted that on or about 28 October 2022 Ms Sarkissian conducted a lengthy and extensive assessment of the injuries, disability and treatment needs. It is further noted that she is an occupational therapist of 20 years’ experience.
With respect to the insurer’s submission in relation to their being an absence of high quality studies supporting a specialist mattress for treatment of pain, the claimant notes that the Medical Assessor stated that there were no such studies to neither support nor discount the fact a mattress is required.
In respect of whether a fracture of the coccyx has occurred, the claimant submits that whether it is confirmed or not, based upon the claimant’s injury, presentation and findings on examination the Assessor felt the mattress was reasonable and necessary treatment.
The claimant submits that the evidence is against an argument that the injury symptoms are not significant. In this regard, the various reports of Momentum Rehab are noted that document ongoing sleeping difficulties, with suggestion the mattress used was possibly also contributing to ongoing symptoms. In addition, the various Movement 101 reports are noted that document ongoing sleep issues with the mattress used possibly continuing to the ongoing symptoms.
The claimant notes that the “quality studies” referred to by the insurer are not named.
DOCUMENTATION
The Panel has considered all documents contained within the parties’ respective bundles that were lodged in response to the Panel’s interim directions dated 30 July 2024. The insurer lodged a bundle on the Commission portal on 26 August 2024 and the claimant lodged a bundle on 17 September 2024.
St George Hospital
The claimant was taken to the hospital after the motor accident by her husband. The Emergency Department Discharge Referral notes the claimant suffering a superficial occipital laceration with reported pain over the scalp, lumbar spine tenderness with no neurological symptoms, and some sensory changes to the base of her skull. CT of the brain and cervical spine are reported as showing no fractures of intracranial haemorrhage.
Claim documentation
In an application for personal injury benefits dated 8 May 2022 (approximately one month after the accident), the claimant described injuring the back of her head. She also notes bad bruising to the left thigh and right calf where she was hit by the car. In addition, bruising to the top of her right arm was bruised in addition to symptoms to the right hand. The claimant states “I now cannot sleep as bruising & back of head doesn’t allow me to, have severe neck & lower back pain constantly cannot sit, lie or walk for long periods as pain is constant.”
The claimant’s general practitioner (GP), Dr Parras has provided various certificates of capacity. The original certificate dated 13 May 2022 provides a diagnosis of neck and lower back pain and headaches, and head injury – scalp laceration. This diagnosis is repeated in subsequent certificates.
The claimant initially received physiotherapy treatment with Brighton Physiotherapy & Sports Injury. In an Allied Health Recovery Request (AHHR) dated 19 May 2022 a diagnosis of strain to the neck and lower back is documented with symptoms including pain to the cervical, thoracic and lumbar spine.
Thereafter the claimant received physiotherapy treatment with Movement 101. In an AHHR dated 30 September 2022 a diagnosis of mechanical cervical spine pain, mechanical thoracic spine pain and lumbar spine pain is given. Short term relief was noted from previous physiotherapy. The claimant had reduced movement due to pain.
Momentum Rehab
At the request of the insurer, occupational therapist, Anoush Sarkissan of Momentum Rehab conducted an activities of daily living assessment on 25 October 2022. The claimant described constant pain, due to injuries to the scalp, hips, left shoulder, pain in the back of the top of the neck and to the tail bone. Symptoms were noted to be aggravated by static postures sleeping on her mattress in the main bedroom, working, and walking her dog.
It was recommended that she be provided with an alternative supportive mattress for her main bedroom. It was noted that the claimant had been sleeping on a king single bed in the spare bedroom and found it more comfortable and less disruptive to her sleep. It is said that such sleeping arrangement was causing increased anxiety and stress causing marital issues and relationship difficulties with her husband. The claimant requested a replacement queen sized mattress for the main bedroom. On inspection Ms Sarkissan found the subject bed to be soft and lacked adequate spinal support, with the king single bed in the spare bedroom being firmer and appeared to provide better support.
In respect of sleeping difficulties, Ms Sarkissan concludes:
“Ms Tsesmetzis was recommended to first address other factors contributing to her symptoms prior to considering change of mattress (Assessment has confirmed Ms Tsesmetzis’ symptoms are aggravated by walking her dog and her work duties). However she does not feel this approach is practical as she is overwhelmed and anxious about continuing to sleep in the spare bedroom and the impact it will continue to have on her relationship with her husband.
Discussion with Mr Smyth (Physiotherapist) has confirmed whilst there is limited evidence on whether replacing a mattress will lessen her symptoms and improve sleep, given Ms Tsesmetzis reports improved sleep and reduced symptoms with the mattress in the spare room then it is reasonable to consider sourcing the same or similar mattress for the main bedroom.
As such, given Ms Tsesmetzis’ reports reduced symptoms with the firmer mattress in the spare bedroom, her reported anxiety and stress and to assist with maintaining her ADLs and work hours, it is recommended she is provided with funding to purchase an alternative supportive queen size mattress to replace her current mattress.”
GP records
Dr Parras saw the claimant after the accident first on 21 April 2022. It was noted the claimant had lower back symptoms, pain in the neck and headaches, with insomnia due to pain.
In subsequent consultations complaints regarding the neck, lower back and interscapular pain are noted. On 27 April 2023 the GP notes the claimant’s tail bone was bothering her and it was noted that she cannot sit for long. In addition, her scalp was bothering her.
The notes end in January 2024, with the claimant up until then making regular complaints in respect of her back pain.
Associate Profession (A/Prof) Justin Paoloni, Sports Physician
In a report to the claimant’s GP dated 2 March 2023 the A/Prof notes the claimant to have ongoing chronic central cervical spine pain, thoracic back pain with left posterior chest wall pain as well as lumbar back pain with occasional fleeting stabling pain to the left lateral hip.
The A/Prof noted X-rays of the spine to suggest C3/4 and C5/6 disc-osteophyte complexes, mild thoracic scoliosis and degenerative change at the L1/3 and L5/S1 levels.
The ongoing pain was noted and A/Prof Paoloni states further investigation is required to determine the cause. He recommended using icepacks and topical diclofenac and avoiding aggravating activities together with movement of the cervical and thoracic spine, self-restricted strengthening, as well as one-leg quarter squat strengthening exercises. Some gentle spinal mobilisation at physiotherapy was recommended.
In a further report dated 30 March 2023, the doctor noting ongoing stable chronic pain in the cervical spine, thoracic spine and lumbar spine with occasional fleeting stabling pain in the left lateral hip. He requested approval for cortisone injections at the T9/10 level and ultrasound guided Traumeel trigger point injections at the cervical, thoracic and lumbar spine.
Improvement was noted in a report dated 7 September 2023, following the injections. Active inflammation at multiple sites was noted on a bone scan (22 March 2023). The A/Prof continued to recommend home strengthening exercises. The decrease in pain was noted to have been sustained in a report dated 16 October 2023.
A note of 6 November 2023 notes that on psychometric testing the claimant had extremely severe stress and moderate anxiety and significant catastrophizing.
Sydney Spine and Pain Rehab
In an AHHR dated 5 June 2024 the claimant is noted to have persistent widespread body pain including left occipital headaches, neck pain, left shoulder back pain, lower back pain, coccygeal pain and bilateral knee pain.
Radiology
In addition to the X-ray of the spine referred to by A/Prof Paoloni the claimant underwent a CT of the lumbar spine and an X-ray of the coccyx on 3 February 2024. The report notes that the coccyx was poorly visualised due to body habitus, but there appeared to be a deformity at the sacrococcygeal junction which may be from previous injury. It was noted that the fracture has united. Degenerative disc disease at the L1/2 and L5/S1 levels was noted with no nerve root compression.
Dr Conrad
Dr Conrad has provided a medico-legal report to the claimant’s legal representatives dated 20 February 2024. He concluded that as a result of the motor accident the claimant sustained a whiplash injury of the neck, a back strain and direct trauma to her coccyx.
He recommended conservative treatment including medication, medical supervision, physiotherapy, psychological counselling and possibly pilates program. Some home care assistance was also recommended. The doctor noted the claimant to be well-motivated working five and a half hours, five days a week in a call centre.
Dr Rimmer
In a report addressed to the insurer dated 22 November 2023, Dr Rimmer concluded the claimant had suffered a resolved strain to the cervical and lumbar spine, in addition to an abnormal illness behaviour.
DIAGNOSIS
The Panel finds the claimant to have suffered various musculoskeletal injuries as a result of the motor accident, most notably to the cervical, thoracic and lumbar spine. The Panel notes the claimant’s sustained complaints of significant pain, particularly in respect of the lumbar spine.
The Panel notes the suggestion of a fracture to the coccyx. The Panel does not accept, on the balance of probabilities, that any such fracture was sustained as a result of the accident. Such a fracture would have precipitated severe acute symptomatology, and there is an absence of same recorded in the contemporaneous material, most notably the hospital discharge referral.
FINDINGS AND DISCUSSION
The insurer, in its internal review determination, placed the issue of whether a mattress would fall within the definition of treatment and care as contained within s 1.4 of the MAI Act. That argument has not been elaborated on in the insurer’s submissions. The Panel notes that such determination would have ideally been made by a decision maker prior to the Panel’s determination. In any event, the Panel has accepted that a claim for the mattress would fall within the definition of treatment and care for the purposes of the MAI Act.
Is the request for a mattress reasonable and necessary?
The panel does not find that the proposed treatment, the replacement of a mattress, represents accepted treatment for the claimant’s injuries.
The Panel is not aware of any high quality studies to support a therapeutic benefit from a specific mattress. The Panel notes the claimant’s submissions that there is an absence of studies that find that there is no benefit. However, in the expert medical judgment of the Medical Assessors a replacement mattress is not an appropriate form of treatment for the claimant’s musculoskeletal injuries.
The Panel agrees that an effective treatment plan would involve strengthening exercises as recommended by Dr Paoloni.
Such treatment, as recommended and provided by Dr Paoloni is accepted and recognised treatment for the claimant’s spinal condition. This is not the case with the provision of a mattress, as recommended by the occupational therapist.
The Panel does not find that the provision of a new mattress will lead to recovery or an improved outcome, over and above the existing treatment regime, which includes her physical therapy directed exercise regime.
In coming to its findings, the Panel has been guided by the case of Diab and the factors set out therein as being relevant to the determination. The Panel does not consider the replacement mattress to be an appropriate treatment option in the absence of accepted clinical evidence that is an effective treatment. This is particularly so when the claimant is receiving appropriate treatment as guided by her treating specialist doctors. The Panel does not accept that the mattress would present an effective form of treatment in such circumstances, particularly in the absence of it being an accepted modality of treatment by medical experts.
The Panel therefore finds that the provision of a replacement mattress is not reasonable and necessary. The Panel accepts, however, that the request for the mattress relates to the injury caused by the motor accident, however, such request is not reasonable and necessary.
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