Insurance Australia Limited t/as NRMA Insurance v Wilson
[2022] NSWPICMP 307
•14 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Wilson [2022] NSWPICMP 307 |
| CLAIMANT: | Simon Wilson |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL: | Principal Member John Harris Medical Assessor Rhys Gray |
| DATE OF DECISION: | 14 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 20 January 2016 when his vehicle was hit at the side; the claimant had a history of back pain but was asymptomatic at the time of the motor accident; post-accident the claimant underwent spinal fusion; three previous single medical assessors accepted the surgery was causatively related to the accident and assessed impairment at greater than 10%; Held — the short delay in onset of lumbar spine symptoms was medically plausible; the nature of the accident considered in the context of engineer evidence; it was accepted that the motor accident caused an onset of pain which was plausible in light of the previous surgery and degenerative changes; numerous treatment disputes decided in the absence of proper assistance by the parties; observation that medical assessment of future treatment is decided on different basis that Courts/assessments which assess damages based on a future contingency; Malec v Hutton considered; claimant assessed at 20% impairment as no deduction made; replacement certificates issued for treatment disputes based on an assessment of all 38 treatment disputes. |
| DETERMINATIONS MADE: | Medical assessment – permanent impairment Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% The assessment made by the review panel under section 63(4) is as follows: The panel revokes the certificate dated 4 november 2021 and issues the following certificate:1. The degree of permanent impairment as a result of the injury caused by the motor accident is 20%.2. Medical assessment – treatment and care Review panel assessment of treatment and care and Replacement certificate issued under section 63 of the motor accidents compensation act 1999 The review panel revokes the certificate of medical assessor bodel dated 4 november 2021 and issues the following certificate. The following treatment and care are causatively related to the injury sustained in the motor accident: Items 1, 3, 5, 7, 13, 15, 17 (34 attendances), 19, 21 (4 consultations), 23 (24 consultations), 25 (50 consultations), 27 (21 consultations), 29 (2 consultations), 31 (twice per year for the duration of life expectancy) in paragraph 8 of these reasons. The following treatment and care are reasonable and necessary in the circumstance: Items 2, 4, 6, 8, 14, 16, 18 (34 attendances), 20, 22 (4 consultations) 24 (24 consultations), 26 (50 consultations), 28 (21 consultations), 30 (2 consultations), 32 (twice per year for the duration of life expectancy) in paragraph 8 of these reasons. The following treatment and care are not reasonable and necessary in the circumstances or causatively related to the injury sustained in the motor accident: Items 9, 10, 11, 12, 33, 34, 35, 36, 37 and 38 in paragraph 8 of the reasons. |
REASONS
BACKGROUND
Mr Simon Wilson (the claimant) was involved in a motor accident on 20 January 2016 when his vehicle collided with another vehicle. The exact circumstances of this motor accident are discussed later in these reasons.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Wilson any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present disputes between the parties are whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10% and whether various treatment and care were “reasonable and necessary in the circumstances” and “relates to an injury caused by the motor accident”. These constitute medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a Review Panel.
[3] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Bodel who issued a medical assessment certificate dated 4 November 2021. Medical Assessor Bodel appeared to conclude that all of the listed treatment were both reasonable and necessary and caused by the motor accident. The Medical Assessor also determined that the permanent impairment as a result of the injury caused by the motor accident is greater than 10%.
A treatment dispute was filed on a number of matters without any proper assistance from the parties. Thirty-eight treatment disputes were identified, nineteen relating to the causal nexus of the treatment to the motor accident and nineteen pertaining to the different issue of “reasonable and necessary”. Thirty of those disputes related to past treatment and eight for the period “from the date of the MAS assessment”. We take that expression to mean from the date of these reasons. The various treatment and care disputes were defined as:
“1. Whether the specialist consultation with Dr Bertouch Prince of Wales on 23/02/2017 in relation to the lumbar spine is causally related to the injury sustained in the subject accident.
2. Whether the specialist consultation with Dr Bertouch Prince of Wales on 23/02/2017 in relation to the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident.
3. Whether the CT and bone scan of the lumber spine performed on 31 May 2016 is causally related to the injury sustained in the subject accident.
4. Whether the CT and bone scan of the lumber spine performed on 31 May 2016 is reasonable and necessary in relation to the injury sustained in the subject accident.
5. Whether the CT of the lumber spine, Dr Fain performed on 18 August 2016 is causally related to the injury sustained in the subject accident.
6. Whether the CT of the lumber spine, Dr Fain performed on 18 August 2016 is reasonable and necessary in relation to the injury sustained in the subject accident.
7. Whether the X-ray of the lumbar spine performed on 4 February 2016 is causally related to the injury sustained in the subject accident.
8. Whether the X-ray of the lumbar spine performed on 4 February 2016 is reasonable and necessary in relation to the injury sustained in the subject accident.
9. Whether the Ultrasound of the abdomen performed by Dr Kaplan on
29 August 2017 is causally related to the injury sustained in the subject accident.10. Whether the Ultrasound of the abdomen performed by Dr Kaplan on
29 August 2017 is reasonable and necessary in relation to the injury sustained in the subject accident.11. Whether the Imaging of the hip joints performed on 16 February 2018 is causally related to the injury sustained in the subject accident.
12. Whether the Imaging of the hip joints performed on 16 February 2018 is reasonable and necessary in relation to the injury sustained in the subject accident.
13. Whether the CT & MRI Scan if the lumbar spine performed on 14 June 2018 is causally related to the injury sustained in the subject accident.
14. Whether the CT & MRI Scan if the lumbar spine performed on 14 June 2018 is reasonable and necessary in relation to the injury sustained in the subject accident.
15. Whether the CT & MRI Scan of the lumbar spine performed on 8 January 2019 is causally related to the injury sustained in the subject accident.
16. Whether the CT & MRI Scan of the lumbar spine performed on 8 January 2019 is reasonable and necessary in relation to the injury sustained in the subject accident.
17. Whether the 0-61 attendances with Dr Tockar GP between 25 January 2016 and 21 February 2020 is causally related to the injury sustained in the subject accident.
18. Whether the 0-61 attendances with Dr Tockar GP between 25 January 2016 and 21 February 2020 is reasonable and necessary in relation to the injury sustained in the subject accident.
19. Whether the hospital, surgeon associated inpatient stay for lumbar fusion surgery performed by Dr Loefler, Orthopaedic Surgeon on 12 January 2018 is causally related to the injury sustained in the subject accident.
20. Whether the hospital, surgeon associated inpatient stay for lumbar fusion surgery performed by Dr Loefler, Orthopaedic Surgeon on 12 January 2018 is reasonable and necessary in relation to the injury sustained in the subject accident.
21. Whether the 0-4 specialist consultations with Dr Loefler between
28 February 2017 and 8 January 2019 is causally related to the injury sustained in the subject accident.22. Whether the 0-4 specialist consultations with Dr Loefler between
28 February 2017 and 8 January 2019 is reasonable and necessary in relation to the injury sustained in the subject accident.23. Whether the 0-24 consultations with Andrew Keady, Exercise Physiologist between 18 October 2016 and 21 February 2017 is causally related to the injury sustained in the subject accident.
24. Whether the 0-24 consultations with Andrew Keady, Exercise Physiologist between 18 October 2016 and 21 February 2017 is reasonable and necessary in relation to the injury sustained in the subject accident.
25. Whether the 0-251 consultations with physiotherapist Andrew Webster in relation to the lumbar spine between 19 April 2016 and 20 February 2020 is causally related to the injury sustained in the subject accident.
26. Whether the 0-251 consultations with physiotherapist Andrew Webster in relation to the lumbar spine between 19 April 2016 and 20 February 2020 is reasonable and necessary in relation to the injury sustained in the subject accident.
27. Whether the 0-21 consultations with rehabilitation provider, Work Focus in relation to the lumbar spine between 1 March 2017 and 17 February 2020 is causally related to the injury sustained in the subject accident.
28. Whether the 0-21 consultations with rehabilitation provider, Work Focus in relation to the lumbar spine between 1 March 2017 and 17 February 2020 is reasonable and necessary in relation to the injury sustained in the subject accident.
29. Whether the 0-2 specialist consultations and CT imaging for guided facet joint injections in relation to the lumbar spine on 9 June 2016 and 14 July 2016 is causally related to the injury sustained in the subject accident.
30. Whether the 0-2 specialist consultations and CT imaging for guided facet joint injections in relation to the lumbar spine on 9 June 2016 and 14 July 2016 is reasonable and necessary in relation to the injury sustained in the subject accident.
31. Whether the future 0-12 General Practitioner consultations in relation to the lumbar spine from the date of the MAS assessment and ongoing for the remainder of the claimant's medium life expectancy (0-30,40 years and ever year in between) is causally related to the injury sustained in the subject accident.
32. Whether the future 0 -12 General Practitioner consultations in relation to the lumbar spine from the date of the MAS assessment and ongoing for the remainder of the claimant's medium life expectancy (0-30,40 years and ever year in between) is reasonable and necessary in relation to the injury sustained in the subject accident.
33. Whether the future 0-52 physiotherapy sessions per year in relation to the lumbar spine from the date of the MAS assessment and ongoing for the remainder of the claimant's medium life expectancy (0-30,40 years and ever year in between) is causally related to the injury sustained in the subject accident.
34. Whether the future 0-52 physiotherapy sessions per year in relation to the lumbar spine from the date of the MAS assessment and ongoing for the remainder of the claimant's medium life expectancy (0-30, 40 years and ever year in between) is reasonable and necessary in relation to the injury sustained in the subject accident.
35. Whether the future 0-96 Pilates sessions per year in relation to the lumbar spine from the date of the MAS assessment and ongoing for the remainder of the claimant's medium life expectancy (0-30, 40 years and ever year in between) is causally related to the injury sustained in the subject accident.
36. Whether the future 0-96 Pilates sessions per year in relation to the lumbar spine from the date of the MAS assessment and ongoing for the remainder of the claimant's medium life expectancy (0-30, 40 years and ever year in between) is reasonable and necessary in relation to the injury sustained in the subject accident.
37. Whether the future 0-1 surgery for lumbar fusion at L4/5 is causally related to the injury sustained in the subject accident.
38. Whether the future 0-1 surgery for lumbar fusion at L4/5 is reasonable and necessary in relation to the injury sustained in the subject accident.”
THE REVIEW
The application for referral of the medical assessments to a Review Panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 19 January 2022, the President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a Review Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles, the insurer providing a separate bundle for each matter.
The Panel issued a further direction dated 14 April 2022 requesting submissions “directed to the mechanism of the motor accident”. Submissions were filed in accordance with this Direction. The claimant noted that there was no statement from the insured in circumstances where it submitted that the accident occurred in circumstances other than alleged by Mr Wilson. Accordingly, in a further direction the insurer was provided with an opportunity to respond to the absence of evidence.
On or about 14 June 2022 the insurer filed an investigator’s report dated 25 February 2021 which attached statements from Maximus Saad and Mary Saad. The statements note that they were taken over the phone by the investigator on 9 December 2020 and signed on 23 February 2023 [sic 2021].
No submissions were then filed by the insurer responding to the Panel’s direction or why the statements should be admitted.
On 21 June 2022 the claimant filed submissions opposing the admission of the two statements. It was noted that the statements were dated 21 February 2021 and the investigator’s report dated 25 February 2021 and that Assessor Bodel subsequently provided a certificate issued on 22 June 2021. It submitted that the insurer made a conscious forensic decision not to put the statements before Assessor Bodel. Accordingly, the insurer “must be estopped from utilising the statements”. This was a matter of fairness and consistent with the objects of the MAC Act to reach an early resolution of matters.
The claimant referred to Singh v Motor Accidents Authority (No 2)[9] as authority for the proposition that the insurer is not “permitted to introduce such evidence in a further assessment application”.
[9] [2010] NSWSC 1443 (Singh (No 2)).
The claimant submitted that the statements do not contradict his statement that the vehicle left the ground before thumping back down on the road. This is because the insured stated that he was unable to comment on whether any of the wheels left the ground. That statement was contrary to the assumptions made by Dr McIntosh that the insured described the collision as “not hard enough to have caused the claimant’s vehicle to lift off the ground”.
It was submitted that the expert opinion of Dr McIntosh is of no assistance because he determined the matter based on these assumptions. Further, Dr McIntosh does not have the “training, education or experience to offer any expert opinion or calculation on how two colliding cars will react or depart from their normal path before the collision”.
The insurer filed further submissions dated 22 June 2022. It submitted that the “material was not included due to an oversight by the solicitor acting”.
The insurer submitted that there is no issue estoppel, the statement is supportive of version set out in the expert’s report and the nature of any alleged estoppel is far from clear.
The insurer noted that Singh (No 2) is “not good law” referring to Jubb v Insurance Australia Ltd.
The insurer referred to rule 128 of the PIC Rules and submitted that the statements would be of assistance and are “supportive and consistent with the assumptions provided by Dr McIntosh”. The claimant was not taken by surprise and was otherwise on notice of the insurer’s position.
The insurer submitted that paragraph 12 of the statement of Maximum Saad and paragraph 11 of the statement from Mary Saad contradict the claimant’s statement that the wheels remained on the ground.
The insurer disputed that Dr McIntosh’s opinion was somehow confined and he formed his own view based on an examination of the photographic evidence, the description of the accident and his consideration of the collision dynamics. He has the expertise based on his qualifications, research and studies and his conclusions are within his area of expertise.
The claimant filed further submissions in reply to the insurer’s further submissions dated 22 June 2022. It was submitted that the insurer has not explained why the witness statements were withheld from the previous Assessors, the claimant and the Commission. It emphasised the objects of the PIC Act which include early cost-effective decision making.
The claimant submitted that Rule 128 of the PIC Rules was not a “back door” mechanism to introduce fresh evidence. The rules “do not override” provisions of the MAC Act such as s 62 and cannot be interpreted in a manner inconsistent with the objects contained in s 3 of the PIC Act. It was submitted that “in lieu of any explanation as to why the said two witness statements were withheld … the latest Application … is at best embarrassing and at worst an abuse of process”.
The claimant repeated its previous submission that Dr McIntosh provided an expert opinion on an assumption that the insured described the collision as “not really an impact”. The above assumption was “false” given the insured driver never said the collision was “not really an impact” and stated that he was “unable to comment on whether any of the wheels on the other car left the roadway”.
The claimant repeated its earlier submission that Dr McIntosh did not have the expertise to comment on whether the vehicle left the ground. Otherwise, he submitted the report should be given no weight as it relies on a false assumption as the basis for the opinion.
On 27 June 2022 the Panel advised the parties that we had received “multiple submissions which had become repetitive” and they were “requested not to make further submissions unless they believe they have been unfairly prejudiced by the most recent submission”.
PROCEDURAL HISTORY
To understand the dispute, it is necessary to set out in some detail the procedural history in this matter.
Assessor Wilding
Assessor Wilding provided an assessment dated 14 May 2019[10] when he found that the motor accident aggravated pre-existing degenerative changes and the annular tear at L5/S1.
[10] Insurer’s treatment bundle, page 265.
The pre-accident history was that Mr Wilson had a back injury in 1999 and experienced episodes of discomfort in the low back over the years which he described as a “niggle”. The accident was described as causing the claimant’s car to tilt onto the driver’s side wheels before bouncing back onto the road and he was flung around sideways in the car.
Initial pain was a “twinge” which developed into a “sharp quality” resulting in consultation with the general practitioner on 25 January 2016. The Assessor concluded:[11]
“Mr Wilson said that he had a prior history of niggling discomfort from time to time in his lower back before the motor vehicle accident. However, a series of consultations with his family doctor prior to the motor accident did not record back pain in any of those consultations.
On 20/1/2016 he was involved in a motor accident as described above, and this motor vehicle accident aggravated pre-existing degenerative change in the lumbar spine and also resulted in an annular tear. He initially experienced a ‘twinge’ of discomfort after the accident, but the pain gradually worsened and developed a ‘sharp’ quality.”
[11] Insurer’s treatment bundle, page 269/270.
The Assessor noted that an epidural injection gave relief for about five days before the symptoms recurred and subsequently undergoing a spinal fusion with an excellent outcome. An assessment was made of 20% impairment with no deduction.
Assessor Dixon
Assessor Dixon provided a further assessment dated 22 September 2020.[12] The Assessor assessed the permanent impairment of the lumbar spine at 15% and certified that various treatments were reasonable and necessary and related to the injuries caused by the motor accident. Other future treatment was considered not reasonable and necessary and not related to the motor accident.
[12] Claimant’s bundle, page 41.
The Assessor noted a back injury in 1996 from which the claimant recovered and returned to full-time employment. The history of the motor accident was the insured vehicle turned into the claimant’s lane “colliding with the rear offside of his vehicle, causing his vehicle to tilt on the driver’s side wheel before bouncing back down onto the road”.[13]
[13] Claimant’s bundle, page 48.
Thereafter the pain in the lower back did not resolve, save for an epidural cortisone injection which gave transient relief.
Assessor Dixon concurred with the opinion of Assessor Wilding that jolting action, secondary to the titling of the vehicle aggravated and accelerated the claimant’s degenerative changes in the lumbo-sacral spine.
The lumbar spine was assessed at DRE IV (20%) less DRE II (5%) for the pre-existing L4/5/S1 spondylosis.
Medical Assessor Bodel
Medical Assessor Bodel examined the claimant on 22 June 2021 noting a history of the motor accident similar to that recorded by Assessor Dixon save that the claimant referred to the collision occurring on the offside. The Medical Assessor then noted that the claim form included a diagram where the insured vehicle came from the right-hand lane towards the left rather than the reverse history provided to him.
Medical Assessor Bodel observed that the claimant was “adamant that the injury occurred in the manner described to me”. He observed that either Mr Wilson’s memory is flawed or that the claim form is wrong and filled out by someone else. The photographs of the claimant’s vehicle show damage to the driver’s side and not on the passenger side.
The Medical Assessor observed that as an orthopaedic surgeon, the effect on
Mr Wilson would be the same and would cause the pathology if either version was correct, that is an aggravation of degenerative changes. In commenting on
Dr McIntosh’s opinion, Medical Assessor Bodel stated:[14]“I have very great difficulty with this assertion and the opinion that is expressed. This non-medical opinion makes an assumption that this gentleman was having ‘chiropractic treatment once a month’ for the management of a back condition. It does not take into consideration the known spinal pathology in the lower part of the back and it ignores the local doctor’s records which show no reference to the lower back for many years prior to the subject accident which is currently under review. The known pathological process at the L5/S1 level in my view is more likely to be ‘injury’ with this type of force exerted in this circumstance and to cause additional structural damage in the form of the annular tear which is identified on the MRI scan.
Clearly the degenerative change was longstanding and pre-existing because of the appearances in the MRI scan done soon after the accident. They are clearly longstanding but additional structural damage has probably occurred on the balance of probabilities because of the symptoms that he describes of unremitting back pain ever since that event which is not recorded in the local doctor’s continuation notes which pre-date the event.”
The Medical Assessor observed that the mechanism of injury in an abnormal spine “requires much less force” and from a medical point of view “could cause additional structural damage”.[15] In that context, the extensive historical research considered by
Dr McIntosh “do not take into consideration the medical status of the injured person”.[14] Claimant’s bundle, page 73.
[15] Claimant’s bundle, page 74.
The Medical Assessor accepted that the surgery was related to the accident and assessed impairment at 15% after making a deduction of 5% impairment. He otherwise considered all treatment causatively related and necessary.
Medical Assessor Bodel provided a further report dated 4 November 2021[16] which is repetitive of the earlier report.
[16] Claimant’s bundle, page 79.
Statutory provisions/Guidelines
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[17]. In Raina v CIC Allianz Insurance Ltd[18] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[17] See s 3B(2) of the Civil Liability Act 2002.
[18] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a Review Panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction and further material following the second Direction.
Pre-accident records
The clinical records of Dr Tockar commence in 1999.[19] In 2009 there is a reference to a cough and subsequent “sore back and neck”.[20]
[19] Insurer’s treatment bundle, page 127.
[20] Insurer’s treatment bundle, page 119.
On 5 August 2013 the general practitioner recorded the reason for contact as “back pain and now settling” with “flares up 3 times a yr”.[21] There are regular appointments after that date and prior to the motor accident which do not refer to the back. Some of these refer to a psychological problem associated with interpersonal reactions at work.
[21] Insurer’s treatment bundle, page 115.
The claimant was having chiropractic treatment for his spine, including his lower back, for many years. These notes are referred to separately.
Claimant’s statement evidence
Mr Wilson provided a statement dated 15 May 2020 referring to his low back injury at work in 1996, being off work for 6 – 8 weeks and return to full-time employment.[22] He stated that he continued to consult Mr Badolato for what he described as a “maintenance program” working on various parts of his body including his back.
[22] Claimant’s bundle, page 110.
Mr Wilson described the motor accident as follows:
“At around 2:30 pm on this day I was travelling approximately 40 kilometres per hour in the right hand land when I notice a stationary vehicle in the left hand lane. Without warning the vehicle suddenly accelerated and turned into my lane, subsequently colliding with the offside rear of my vehicle. The collision caused my vehicle to tilt on the driver side wheels before bouncing back down onto the road.”
Mr Wilson said he woke up in severe pain “a few days after the accident” but was not able to see Dr Tockar “for a few days”. Thereafter, Mr Wilson described ongoing low back pain save that an epidural injection provided relief for approximately five days.
Claim form
Mr Wilson completed a claim form dated 12 February 2016. He described the motor accident as follows:[23]
“I was driving towards the beach on Bondi Rd in the left lane, maximus was in the right lane, behind a vehicle indicating to turn right. He without warning turned into the left hand lane just as I was passing him. Swiping the rear of my vehicle and temporarily putting me on 3 wheels.”
[23] Claimant’s bundle, page 105.
General practitioner
Mr Wilson consulted Dr Tockar on 25 January 2016. The clinical notes on that occasion are set out in full:[24]
“back pain old problem.
He thinks it is a disc protrusion.
Sidewiped car 5 days ago.
Pain lower back yesterday and could not get out of bed.
Suggest use panadeine and heat. Mechanical type pain.
Has not been off work.
Not planning to thru MAA.”
[24] Insurer’s treatment bundle, page 109.
Dr Tockar opined that the accident “has triggered muscle imbalance and acute pain”. On 4 February 2016 the doctor noted that “back has been getting worse”. Thereafter there is regular contact with the general practitioner for low back problems.
A medical certificate dated 12 February 2016 referred to left sided low back muscle spasm.[25]
[25] Insurer’s impairment bundle, page 22.
In May 2016 Dr Tockar noted that Mr Wilson had issues dealing with the “psychosocial side of chronic pain”.[26] In June 2016 Dr Tockar recorded that Mr Wilson was “largely pain free but fully” [sic] following bilateral facet injections. Two weeks later the doctor recorded that the pain free condition lasted two days.[27]
[26] Insurer’s treatment bundle, page 104.
[27] Insurer’s treatment bundle, page 103.
In September 2016 the general practitioner recorded that the back pain “has been going on for 8 months”.[28] The doctor then provided a referral dated 27 September 2016 for Mr Wilson to see Dr Loefler.[29] The doctor noted that Mr Wilson had been “bothered by persistent back pain since he was involved in a MVA 8 months ago”. Mr Wilson stated that he felt driving long distances was an aggravating factor.
[28] Insurer’s treatment bundle, page 101.
[29] Claimant’s bundle, page 115.
Dr Tockar provided a further report dated 12 July 2017. The doctor stated that he saw Mr Wilson on 25 January 2016 with complaints of low back pain when “another car collided with the rear wheel of his car” and feeling immediate pain in his back.[30]
[30] Claimant’s bundle, page 117.
Dr Tockar opined that the motor accident had triggered off chronic back pain noting that the bone scan showed significant inflammation around the L4/5 disc. The doctor noted that the surgery should be seriously considered as the quality of life had significantly deteriorated since the motor accident.
Dr Loefler
Dr Loefler, orthopaedic surgeon, provided a report dated 4 October 2016.[31] The doctor noted a motor vehicle accident described as a side swipe with an impact which was “quite considerable” and the development of back pain in the lower lumbar region.
[31] Claimant’s bundle, page 119.
Dr Loefler noted some pre-existing back pain in the lumbosacral region. The pain had persisted and worsened over the past few months. The doctor opined that the persistent back pain was consistent with the degenerative process at L5/S1. Conservative treatment including exercises and core strengthening was recommended.
In a further report dated 28 February 2017[32], Dr Loefler noted that Mr Wilson continued to struggle with severe mechanical back pain for the past year with the investigations showing pathology at L5/S1. The doctor stated that symptoms started in January of last year, non-operative measures had failed, and he recommended a lumbosacral fusion.
[32] Claimant’s bundle, page 121.
Hospital records show admission for a L5/S1 fusion with interbody cages in January 2018.[33] The surgery was performed on 12 January 2018. Dr Loefler noted that the L5/S1 disc was “stiff” and “degenerate disc material was removed”.[34]
[33] Insurer’s treatment bundle, page 244.
[34] Insurer’s treatment bundle, page 248.
Post fusion surgery, Dr Loefler noted that original pain had settled with ongoing stiffness. Regular swimming was encouraged.[35] On 14 June 2018 Dr Loefler noted that Mr Wilson had resumed driving which upset his back due to prolonged sitting.[36]
[35] Claimant’s bundle, page 122.
[36] Claimant’s bundle, page 123.
In a subsequent report dated 11 September 2018 Dr Loefler stated that Mr Wilson was pain free with normal activities eight months post fusion but has discomfort when he sits for long periods.
Dr Bertouch
Dr Jim Bertouch, rheumatologist, provided a report dated 11 January 2017 noting a history of continuing back pain since 20 January 2016[37] with “some pre-existing low back symptoms but not particularly severe”.
[37] Insurer’s treatment bundle, page 223.
In a further report dated 27 February 2017[38] Dr Bertouch noted that severe lower back had recurred despite dramatic responses to the epidural blocks. Dr Bertouch opined that the symptoms were coming from the degenerative disc at L5/S1 which was shown by the 2016 bone scan to show “intense uptake”. He recommended surgical stabilization of the disc as conservative option would make little difference.
[38] Claimant’s bundle, page 125.
Chiropractor
The records off Belmore Road Chiropractic Centre show treatment for the period from 1 April 2008[39] to 4 February 2016. Mr Wilson received nine treatments in 2015, the latest occurring on 22 December 2015. The entries for the last three treatments are “TAA” which means “treatment as above” which was to the neck, mid back, lower back and pelvis.[40]
[39] Insurer’s treatment bundle, page 258. It is possible the first treatment was in 2005. The Panel were provided with the original records.
[40] Insurer’s treatment bundle, page 262.
The notes on 27 January 2016 record:
“LBP – MVA L ??? P/spasm
20/1/16 – side swiped”
The claimant returned for further treatment on 29 January 2016 and 4 February 2016.
Qualified opinions
Dr New
Dr Charles New, orthopaedic surgeon was qualified by the claimant and provided a report dated 28 June 2017.[41] The doctor noted a history of collision with the rear of the vehicle, when the car “lifted up onto two wheels” resulting in lumbar pain. Two days later the pain was “quite debilitating”.
[41] Claimant’s bundle, page 130.
Prior relevant history was recorded as a 1997 work injury with resolution of symptoms, return to full-time work with “only occasional twinges” in the lumbar spine.[42]
[42] Claimant’s bundle, page 131.
Dr New expressed agreement with Dr Loefler that there was pre-existing lumbar spondylosis pre-dating the injury but a relationship between the examination findings and the motor accident. The doctor recommended spinal fusion from L4 to S1.
In a further report dated 18 July 2017, Dr New confirmed the causal relationship between the claimant’s condition and the motor accident and recommended that if surgery proceeded then it was reasonable and necessary.
Dr Giblin
Dr Peter Giblin provided a report dated 27 February 2019[43] noting a rear end collision when the claimant’s vehicle was side swiped by another car. The doctor noted a pre-accident history of low back pain in 1996 with no low back symptoms after 2010.
[43] Claimant’s bundle, page 136.
Dr Giblin made a provisional diagnosis of soft tissue injury to the low back causally related to the motor accident. He opined that the fusion at L5/S1 will accompany accelerated degeneration at L4/5 and future surgical considerations may result in a L4/5 fusion.
Dr Couch
Dr Michael Couch was qualified by the claimant and provided a report dated 18 March 2020.[44] The doctor noted fairly minor intermittent low back pain since the original work injury which was aggravated by the quite violent jolting which resulted in further injury and permanent aggravation of the L5/S1 disc. Dr Couch opined that Mr Wilson was unfit for his pre-injury employment with some capacity for other employment.
[44] Claimant’s bundle, page 141.
Dr Bentivoglio
Dr John Bentivoglio was qualified by the claimant and provided a report dated 9 February 2017.[45] The doctor noted a history of injury in 1998 with improvement but remained with “some residual symptoms”. MRI scan showed evidence off longstanding degeneration at the L5/S1 level.
[45] Insurer’s treatment bundle, page 77.
Dr Bentivoglio accepted that repeat CT guided epidural injections were appropriate with an exercise-based program to build up core strength. He opined that the main problem was the degenerative changes at L5/S1 which “has become more symptomatic following the specific incident of 20 January 2016”[46] noting that the motor accident was not the “main cause of his current complaints”. Later he opined that the motor accident was not the “current cause of his back symptoms” and that the exacerbation had resolved.
[46] Insurer’s treatment bundle, page 81.
Dr Bentivoglio accepted that the motor accident “aggravated a pre-existing condition” but was “not the main contributing factor to his current symptoms”.
Associate Professor Shatwell
Associate Professor Shatwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 30 May 2019.[47] The doctor obtained a prior history of low back injury in 1996 with regular chiropractic treatment for a number of years. Review of scans showed marked degenerative changes at L5/S1.
[47] Insurer’s treatment bundle, page 83.
Associate Professor Shatwell again noted the different version of the insured vehicle coming from the left lane and colliding with the passenger side door. The doctor opined:[48]
“The low velocity collision described would not have caused any permanent injury to Mr Wilson’s chronic degenerative lumbar spinal disc disease.
I consider the ongoing pain that developed several days after the incident to be related to the degenerative disc disease and not to the effects of the motor vehicle accident which would not have transferred significant energy to
Mr Wilson’s lumbosacral junction to destabilise it.He would have required lumbosacral fusion or suffered from the consequence of degenerative change in the lumbosacral region had the accident not occurred.”
[48] Insurer’s treatment bundle, page 92.
Associate Professor Shatwell opined that the claimant did not require any further surgical or medical treatment although an extension of the fusion to include the L4/5 level may be required. He could not predict this with any certainty. Physiotherapy was unlikely to change symptoms.
Impairment was assessed at 20%, entirely unrelated to the motor accident.
Radiology
An MRI scan of the lumbar spine dated 29 February 2016 referred to acute pain, advance degenerative disease at L5/S1 and mild disc protrusion and annular tear at L4/5.[49]
[49] Claimant’s bundle, page 126.
A bone scan dated 31 May 2016 noted a clinical history of low back pain since motor accident in January 2016, intense uptake at the L5/S1 level with marked L5/S1 discovertebral arthroplasty.[50]
[50] Claimant’s bundle, page 127.
Good symptomatic relief was provided after a CT guided spinal block on 17 January 2017.[51] An X-ray dated 26 February 2018 showed a stable L5/S1 fusion.
Documents relating to the motor accident
[51] Claimant’s bundle, page 128.
Dr Andrew McIntosh was qualified by the insurer and provided a report dated 10 November 2020.[52] A number of documents were considered, and assumptions were made including that the insured “was travelling at approximately 5 km/h”[53], that the insured described the collision as “not really an impact” and was not hard enough for the vehicle to lift off the ground.
[52] Insurer’s treatment bundle, page 297.
[53] Insurer’s treatment bundle, page 301.
The photographs of the claimant’s vehicle were described by Dr McIntosh as “limited” but showed damage to the offside of the rear side of the claimant’s vehicle with “scrape marks and signs of panel deformation” with damage to side frame “unclear, but likely to be limited”.
Dr McIntosh opined that the resultant change in velocity based on the assumptions and the damage observed in the photographs was within or less than 10 km/h. Reference was made to an analogous incident where the struck vehicle “does not lift or tilt” but “there is some rocking-type motion of the vehicle body on the suspension”. He concluded that, on balance, the collision is not consistent with an impact causing the claimant’s vehicle to lift or tilt before landing heaving onto the roadway.
Dr McIntosh then considered whether the collision was of sufficient severity to have caused injury to the claimant’s lumbar spine. He noted that Mr Wilson had a symptomatic low back condition for a number of years and was “suspectable to aggravation by many normal physical activities and/or prolonged sitting”. Dr McIntosh opined:[54]
“[I]t is not possible to exclude the possibility that the incident aggravated the Claimant’s low back condition symptomatically for a closed period of duration, e.g. four to six weeks.”
[54] Insurer’s treatment bundle, page 314.
Dr McIntosh accepted that pre-existing injury is a risk factor in injury likelihood in conditions such as whiplash associated disorders. However, the biomechanical factors the claimant was exposed to were low particularly as no allegations were made regarding forceful direct impacts to the head or shoulder.
Dr McIntosh reviewed lateral collision accidents acknowledging the lack of articles where there is no substantial contact. He concluded that it was unlikely that the subject accident caused the low back injury.
Statements from Mr and Ms Saad
Mr Saad did not remember if he put his left indicator on as the accident “happened a while ago”. In respect of the accident, he stated:
“17. Prior to changing lanes from lane 2 to lane 1, I checked and didn't see a car. I am unsure if I looked and there were no cars in lane 1 or if there was a blind spot. As I changed lanes I recall feeling and hearing the impact of my car hitting another car. I would describe it as the front left side of my car scrapping the driver's side door of the other car. I feel it was only a small impact as I was not travelling very fact that the other car scrapped past my car rather than hitting my car.
18. 1 don't recall hearing the sound of brakes from the other car prior to the impact.
19. I saw the impact of my car with the other car and the other car appeared to remain at the same height. I am unable to comment on whether any of the wheels on the other car left the roadway at the time of impact as I could not see the ground.”
Ms Saad stated that as the accident happened “so long ago” she did not recall the side street. Ms Saad relevantly stated:
“10. At the time I was looking straight ahead and not looking to my left or in the side left mirror so I am unsure how fast the vehicle in lane 1 of 1 was going or where it had come from. I don't recall exactly how long we were stopped for behind the stationary vehicle before we changed lanes. It would have been about 1 minute or so. We were definitely stopped prior to changing lanes when the accident occurred.
11. I would say the impact was only small and it was a very minor accident as our car was not travelling more than 5km/h when we collided with the other car. We only scraped the side of the other vehicle as it travelled past the front left of our car while it only just into lane 1 of 2.
12. I don't recall the other car tilting in the air and any of its wheels leaving the roadway.”
Other material
A report from the physiotherapist dated 26 May 2016 noted chronic back pain since the motor accident against a history of prior back pain from an old work injury.[55] The physiotherapist noted Mr Wilson’s beliefs and propensity for developing chronic back pain.
[55] Insurer’s treatment bundle, page 207.
In a report dated 21 July 2016 the physiotherapist noted reasonable progression with back pain “resolved with most of his activities” although long periods of driving were provocative for back pain.[56]
[56] Insurer’s treatment bundle, page 210.
A series of reports from Workfocus related to Mr Wilson’s conditioning for return to work.[57]
[57] Insurer’s treatment bundle, page 211 – 222.
A list of section 83 expenses made by the insurer dated 15 October 2019 shows expenses of $34,829.46.[58]
[58] Claimant’s bundle, page 150.
SUBMISSIONS
The parties have filed multiple submissions in the course of the medical assessments. The following is only a summary of the extensive submissions.
At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[59] that there was error or in seeking a further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
Claimant’s submissions dated 14 March 2019[60]
[59] Or the relevant predecessor.
[60] Claimant’s submissions, page 1.
The claimant noted that it had obtained an assessment of impairment which was provided to the insurer in March 2019. He also noted that the workers compensation insurer paid for the treatment after consent orders were issued by the Workers Compensation Commission. The insurer did not respond to the claim for the costs of surgery.
The claimant accepted that he had a pre-existing condition which is referred to by
Dr Loefler and Dr Tockar. The last complaint of back pain recorded by Dr Tockar was in August 2013.The claimant denied he consulted a chiropractor monthly prior to the motor accident.
The insurer’s submission that any aggravation had ceased, that the surgery is due to underlying degenerative changes and/or the nature and conditions of employment is not supported by any medical evidence.
Claimant’s submissions dated 7 February 2020[61]
[61] Claimant’s submissions, page 4
These submissions were filed following the assessment of Assessor Wilding dated
14 May 2019 who assessed whole person impairment at 20%.The claimant submits that the clinical notes of the chiropractor and the assessment of Associate Professor Shatwell dated 30 May 2019 were not additional relevant information. He submitted that the clinical notes off Mr Badolato are not inconsistent with the history taken by Assessor Wilding.
Claimant’s submissions dated 22 May 2020[62]
[62] Claimant’s bundle, page 9.
The claimant noted that Dr Loefler recorded a history in his first examination on
4 October 2016 that Mr Wilson had pre-existing lumbar spine pain. The claimant disclosed a pre-existing back in the claim form due to a work injury in 1998 when he was off work for six to eight weeks.The claimant’s treatment by Mr Badolato is explained in his statement. This is not inconsistent with the history recorded by Assessor Wilding of ongoing discomfort described as a “niggle”. Further, even if the claimant was attending his “chiropractor for maintenance one month before the subject accident, there is no evidence the lumbar spine was in any way symptomatic”.
Dr Tockar records a consistent history of ongoing back pain since the motor accident. The last complaint of back pain recorded by Dr Tockar prior to the motor accident was on 5 August 2013 when the doctor noted that the back pain was “now settling”. Otherwise, the claimant maintained his role as a sales representative without any medical treatment save as to consulting his chiropractor.
Associate Professor Shatwell based his opinion on an accident that was relatively minor. Both Associate Professor Shatwell and Dr Bentivoglio accepted that there was an aggravation, but the effects of the aggravation ceased. Dr Bentivoglio otherwise based his opinion on incorrect legal principles, and it is otherwise sufficient that the motor accident was a material contribution to the development of symptoms.
Dr New provided an opinion that following the motor accident the back pain was debilitating and opined that there was a causal connection between the motor accident and the ongoing symptoms and the need or surgery.
It is incumbent on the insurer to provide evidence to establish that any aggravation had ceased, and the evidence must be more than “equivocal”. Both Associate Professor Shatwell and Dr Bentivoglio merely raise doubt and do not satisfy the test set out in Glen v Sullivan.[63]
Claimant’s submissions dated 23 February 2021[64]
[63] [2015] NSWCA 191.
[64] Claimant’s submissions, page 15.
The claimant referred to the two prior assessments of Assessor Wilding dated 14 May 2019 and Assessor Dixon dated 21 September 2020 who both assessed impairment greater than 10%. The insurer now relied on the opinion of Dr Andrew McIntosh dated 10 November 2020 who did not examine the claimant and formed the view that the accident was of not sufficient severity to have caused injury to the claimant’s lumbar spine.
The claimant conceded that Dr McIntosh is a biomechanical engineer, is not a medical doctor and is a repeat of previous opinions expressed by Dr Bentivoglio and
Associate Professor Shatwell.
Claimant’s submissions dated 6 August 2021[65]
[65] Claimant’s bundle, page 21.
These submissions were filed opposing the insurer’s application to review the assessment of Medical Assessor Bodel dated 22 June 2021. He submitted that there was no material error in that assessment.
The claimant noted that the records of Belmore Road Chiropractic Centre show monthly attendances with the most treatment prior to the motor accident in December 2015. These notes do not show what body part was treated and do not record complaints of low back pain.
Reference was made to the opinion of Medical Assessor Dixon who acknowledged the pre-existing treatment for chronic lumbo-sacral disease which was symptomatic prior to the motor accident but also found that the motor accident caused a chronic acute low back strain. Medical Assessor Dixon found that the jolting action from the motor accident aggravated and accelerated the degenerative changes.
Both Medical Assessor Dixon and Medical Assessor Bodel found a causal nexus between the surgery and the motor accident and made a deduction due to the pre-existing condition. Further, Medical Assessor Bodel commented on the medical records of Dr Tockar who commented on back pain on 6 May 2009 and 5 August 2013, the latter note recording that pain was settling. After the motor accident “almost every entry … refers to back pain”.[66] The explanation for the change was the annular tear at the L5/S1 level which eventually led to the spinal fusion.
[66] Claimant’s bundle, page 24.
Whilst Medical Assessor Bodel did not see the chiropractor notes, he was aware that there was monthly treatment and accepted that the claimant was “asymptomatic, or relatively so at the time of the accident”. The deduction made by
Medical Assessor Bodel was consistent with cl 1.31 of the Guidelines.The chiropractic entries between August 2015 and January 2016 make no reference to any complaint of low back pain. The reasons for the treatment are not contained in the clinical notes.
The Medical Assessor is required to perform a statutory task: Wingfoot Australia Partners Pty Ltd v Kocac[67] and is required to give his or her own opinion. The Medical Assessor is not required to comment on each area of disagreement with another opinion. More importantly, the Medical Assessor commented that even if Dr McIntosh was correct about the mechanism of the accident, his opinion about whether the collision was of sufficient severity to cause injury to the lumbar spine is a medical opinion to which Dr McIntosh had no medical expertise. Medical Assessor Bodel addressed these issues in detail in his reasons. The insurer’s suggestion that Medical Assessor Bodel provided no reasons is completely unfounded.
[67] (2013) 252 CLR 480 at [47].
Further, whilst Dr McIntosh relies on studies and historical data, the deficiency, as identified by Medical Assessor Bodel, is that it failed to take into account the particular circumstances of this matter. Further Medical Assessor Bodel indicated that even if the accident occurred in the manner described by Dr McIntosh, the claimant would still have had the same outcome resulting in injury to the low back requiring surgery given the pre-existing condition. As such, the insurer takes the claimant as they find him. Even if there was a mild force in the motor accident, the need for surgery still resulted from the collision.
Claimant’s submissions dated 21 December 2021[68]
[68] Claimant’s bundle, page 31.
These submissions were filed following the provision of a further certificate by Medical Assessor Bodel dated 4 November 2021 opposing the insurer’s application for review.
These submissions largely repeat the submission dated 6 August 2021.
Insurer’s submissions dated 27 April 2020[69]
[69] Insurer’s treatment bundle, page 26.
These submissions were filed in respect of a number of past and future treatment disputes. The insurer’s submission on these disputes is contained in the following paragraph:[70]
“The insurer relies on the assessments of Dr Shatwell, orthopaedic surgeon and Dr Bentivoglio, orthopaedic surgeon, who are both of the view that the claimant recovered from any injury sustained in the accident and has had no need for treatment arising from the accident.”
[70] Insurer’s treatment bundle, page 26.
The insurer submitted that Dr Loefler’s opinion was based on a “misleading history from the claimant” because in the report dated 4 August 2017 the doctor recorded there was no previous accident and no pre-existing back pain.
The insurer submitted that Assessor Wilding relied heavily on the treating clinical notes of the general practitioner and did not properly analyse the chiropractic notes. In response to an email dated 22 May 2019, Mr Paul Badolato said that “TAA” meant “Treatment as above” and the relevant areas were the neck, thoracic spine and lumbo-sacral spine.
The insurer submits that Mr Wilson “did not sustain more than a temporary soft tissue injury to the low back in the accident”.[71] The claimant had a long standing back condition and Dr Loefler attributed the pathology to pre-accident degenerative changes.
[71] Insurer’s treatment bundle, page 28.
The insurer referred to Dr Tockar’s initial note that the back pain was an “old problem” and there was a delayed onset off low back pain for four days. Conservative treatment occurred and the claimant “was doing well”. It was not until there was aggravation caused by lengthy periods of driving that the claimant was referred for specialist opinion.
The insurer relied on the opinion expressed by Associate Professor Shatwell, particularly in the circumstances that the impact was low speed and the claimant’s pre-existing degenerative condition. Reference was also made to Dr Bentivoglio’s opinion that any exacerbation caused by the motor accident had resolved.
Insurer’s submissions dated 15 December 2020[72]
[72] Insurer’s treatment bundle, page 355.
These submissions sought referral for a further assessment based on additional relevant information to a Medical Assessor. It noted that a further assessment was made following the determination by Assessor Wilding because it provided further relevant information being the chiropractic notes and the opinion of
Associate Professor Shatwell.The insurer then sought a further assessment based on the opinion expressed by
Dr Andrew McIntosh which was inconsistent with the conclusions reached by
Assessor Dixon.
Insurer’s submissions dated 18 November 2021[73]
[73] Insurer’s treatment bundle, page 361.
These submissions were filed seeking a review of Medical Assessor Bodel’s decision. It was asserted that the Medical Assessor failed to have regard to the symptomatic condition prior to the motor accident evidenced by the records of Belmore chiropractic clinic which is evidenced by the Medical Assessor’s comment that he had not “seen any record from chiropractic treatment”. It was further submitted that the Medical Assessor failed to have regard to the opinion expressed by
Associate Professor Shatwell.The insurer also submitted that the Medical Assessor fell into error “in rejecting the opinion off Dr Andrew McIntosh and failing to give proper consideration to his expert opinion as to the nature of the collision and the forcers involved”.[74] Reference was made to the Medical Assessor’s conclusion that the claimant’s vehicle was “turned up on its wheels” and he has fallen into error by rejecting or failing to properly consider the opinion expressed by Dr McIntosh.
[74] Insurer’s treatment bundle, page 365.
ADMISSION OF LATE EVIDENCE
Whilst the explanation by the insurer is unsatisfactory, we accept that the statements were not served due to oversight. That explanation is contained in the submissions. It is incorrect, as the claimant submitted, that there is no explanation.
The claimant did not articulate any prejudice or the need to call any evidence in reply. The estoppel submission is misconceived.
The parties referred to authorities on the admission of further material under s 62 of the MAC Act. The clamant referred to Singh (No 2) which had been overruled in Jubb. Neither party referred to the fact that this is a review and a new assessment where the Panel is bound to make its own determination. Accordingly, it is not a review of the Medical Assessor’s decision, and the admission of further material is subject to general principles of the interests of justice.
The admission of the material did not delay the matter in circumstances where Review Panels are a limited and expensive resource. The recent experience since the introduction of a Member into Review Panels, is that the profession appears acutely unaware of that fact.
The weight to be attached to the material is discussed subsequently. We accept the statement evidence and address the weight to be attached to the evidence later in these Reasons.
RE-EXAMINATION
The Panel determined that Mr Wilson would be examined by both Medical Assessors. Their joint examination report is as follows:
“Mr Wilson was born in the UK and worked there as a tradesman floor layer (vinyl/carpet), then migrated to Australia in 1995 and maintained the same type of trade work for about ten years. In 2003 he obtained a sales position in the same business and subsequently had continued in sales and had not been on the tools. He said that his work as a salesman required a lot of driving, including country trips once every four to six weeks visiting Wagga and other regional areas.
Mr Wilson said he had lost his sales job in February 2019 and had not formally worked since, although he had had an online business from home.
At present he is on Jobseeker and actively applying for jobs but has been unable to obtain a satisfactory position, particularly as he is unable to do lengthy driving.
He is now single with one son.
Mr Wilson does not smoke cigarettes and drinks alcohol ‘socially’.
He denied any past history of a motor accident before the subject accident. He had a former Workers’ Compensation claim in 1998/99 - he was working as a tradesman at the time and sustained a back injury and said that within a short period over four to six weeks, he returned to full normal trade duties.
General Health: recent diagnosis of lymphoma and, after a course of chemotherapy he is currently on no treatment, having been told that he has been essentially ‘cured’.
He has taken Somac over the last ten years for intermittent reflux, usually on a second daily basis. And over the last few months has been treated for hypertension.
Otherwise, he takes no regular medication; in particular, no analgesics or anti-inflammatories. Currently, he regularly swims, usually once or twice a week and has done so over the last 15 years. He walks consistently five to six times a week, up to 10km that he said helps him physically and is also a ‘mental thing’. He emphasised that he kept physically fit.
Left hand injury from a sporting injury had settled with no sequel. Past history of an arthroscopy of one of his knees with no ongoing concerns.
Recent biopsy left groin with lymphoma diagnosis.Past: in the past he had a back injury in 1998 while lifting at work that he said had resolved, particularly since 2003 since off the tools.
He said he has had regular chiropractic treatment for his neck and back over an extended period of years and that his chiropractor had become a friend/’good mate’; he generally went for chiropractic treatment on about a monthly basis, describing it as basically a “maintenance program”.Mr Wilson initially said that he had no specific lower back pain pre-accident, and said that since he had given up the tools, everything had settled down.
To closer questioning, he said that he had experienced intermittent back discomfort pre-accident, which he located in the central lumbar area, with no radiation and no associated paraesthesia. He noted that before the accident he had discomfort in the low back, particularly with driving at work, usually about once a month.
He said that he had had this since 1998 but emphasised that the pain/discomfort had been intermittent, not requiring specific treatment and taking no medication for it over the last 20 years. In particular, he said there had been no significant pain or problems in his low back since ‘going off the tools’.HISTORY OF THE PRESENT INJURY
Mr Wilson said as part of work duties, he was driving alone, wearing a seatbelt and approaching Bondi Beach along Bondi Road on 20 January 2016.
He was travelling in the outside (non-kerb) lane and described that a car, two ahead, was stationary awaiting to turn right. Mr Wilson said he pulled into the left (kerb-side) lane to avoid becoming caught in the outside lane behind those two cars; as he executed this manoeuvre, the car that had been immediately in front of his, turned to enter the kerb-side lane as he passed, colliding with the rear offside panels of Mr Wilson’s vehicle.Mr Wilson said he pulled over and exchanged details with the other driver. He said the other driver had no injury and, to direct questioning, Mr Wilson said he felt no injury or symptoms at that stage. However, he said that he believed his vehicle was pushed up onto two wheels by the contact, and that he was jolted about.
To closer questioning, he could not recall any direct contact between his body with any internal structure of the vehicle, apart from the right shoulder hitting the driver’s window - he said this caused “no damage”, with no ongoing shoulder symptoms.
He described quite marked movement of the steering wheel during this episode. On questioning him on how he ascertained that the wheels were “off the ground”, he said that it felt as if they must have been but gave no substantiation. Mr Wilson was shown available photographs of the vehicle and he agreed that BZ90SF was his vehicle and the photos reflected the damage that occurred.
Mr Wilson said he stayed at work and completed one further routine appointment for the day and then drove home. He said the next day he felt fine, then on the second or third day he felt a bit sore in the lower back. He said after swimming the Sunday after, he felt some lower back pain and over a two week period, the pain became “quite bad”.
He recalled attending his general practitioner about five days post-accident and the question of physiotherapy was raised, with no investigations or specific treatment recommended. He recalled that he continued working normal duties at that time and took no time off work until sometime later. He said he kept working and doing normal duties but felt that the back pain progressively became worse. He described that normally each four to six weeks he had to do a country work trip, which included five to six days of driving, staying out in the country.
He noticed increasing pain and getting into “trouble” about March/April 2016. He believed that he was assessed by the physiotherapist at that stage and management was discussed. He was also recommended a course of Pilates that he thought was organised by WorkCover. During this time, he continued to work. However, he found that lengthy sitting, lengthy standing and lengthy driving caused problems with his low back but he maintained full duties and avoided heavy lifting.He said the pain was localised to the low back with no specific radicular symptoms. There were no paraesthesia but there was an occasional feeling of being uncomfortable in the right thigh, more definite than the left thigh. He said he mostly got used to it with swimming, walking and working full time with some improvement.
He had some facet injections that he found “a waste of time”, while an epidural helped for about one week. Exercise physiology with Workers’ Compensation didn’t help.
He recalled attending Dr Loefler, Orthopaedic Surgeon and being recommended to maintain conservative treatment and to carry on with Pilates.
However, just after the time of Dr Loefler’s initial consultation, he said the situation then deteriorated. In particular, long drives were beginning to be quite markedly a problem, although he continued to work full time. He said he was working 35-40 hours per week in sales and driving, doing sales four days a week with Fridays in the office at Wetherill Park. He said the situation was not improving and he was getting occasional catching and grabbing in the low back with buttock discomfort, although he was walking and sleeping satisfactorily. He was then re-referred to Dr Loefler and recommended to have surgery for his low back.
Post-surgery in 2018 he said he returned to work after about three months and continued to do sales work with intermittent driving but no country runs. He said he basically coped with this post-surgery but was restricted because of being occasionally stuck in traffic and having to limit country runs.Mr Wilson said his work gave him a lot of opportunities to accommodate full duties but he was unable to maintain these, so he was ‘sacked’ about one year post-surgery. He was unable to return to full pre-injury duties, although he said that work gave him every opportunity.
He said that now he feels as if the surgery was a “95% success” and said he is pretty much pain-free; however, on closer questioning, he was pain-free with day-to-day activities but he was unable to do lengthy driving because of pain but he is able to swim and walk satisfactorily.
He now has no specific treatment and does not continue with Pilates. He said that after the surgery the back pain has been less, he had lost the catching pain and the intermittent leg discomfort had resolved.
He emphasised that long driving and long sitting cause recurrence of pain but he is able to walk 10km without much worry.
EXAMINATION
On examination, he is 177cm in height and 88kg in weight. His affect appeared normal and he was cooperative and a good historian.
There was a relative kyphosis in the thoracic spine.
In the lumbar (lumbosacral) spine there was an 8cm longitudinal midline surgical scar that was well healed, non-tender, non-attached and of no cosmetic significance.
Active lumbar spine movements were symmetrical and essentially full, with no dysmetria. There was no local tenderness and no guarding. There were no radicular complaints.
Both hips had a reasonable range of non-irritable movements.
Lower limb reflexes were symmetrical and normal. There was no power or sensory deficit in the lower limbs. There was no limitation to straight leg raising. The circumference of both thighs was equal, measuring 44cm (10cm above each suprapatellar border). The maximal circumference of the right calf was 39.5cm and the left calf 40cm.
INVESTIGATIONS
MRI lumbar spine, Dr M Wong, 29.02.16
These films were reviewed. The description of the formal report was consistent with the films viewed. Of note, there was a report of an annular fissure at L4/5 with marked longstanding degenerative changes L5/S1. No annular tear/fissure at L5/S1.
Bone scan, 03.05.16, noted.
X-rays - lumbosacral spine, 08.01.19 viewed and showed an instrumented lumbosacral fusion.
REVIEW OF FILE MATERIAL
Body Balance Physiotherapy, A Webster, 26.05.16
In the first paragraph it is noted that he had prior low back pain 15 years earlier sustained while lifting in a floor job. It reported that Mr Wilson noted that he was advised that after this episode to “come off the tools” and to take up a more administrative/sales job as an alternative.
Panel Comment: Mr Wilson was questioned on this. He said that this was not literally the case. He said that he got back to his normal full activities as a tradesman after that work injury. However, later he acknowledged that he coped with his back with the sales job better than the ‘on the tools’ flooring job.Report of marked symptoms that came on two days after the motor accident. Noted that his swimming and beach walking had been severely limited due to the LBP. Quite definite signs in the lumbar spine noted on that occasion. Noted a degree of fear-avoidance behaviour.
Noted that he had dramatically increased his functional activities after counselling with regard to his approach to his low back pain. A course of specific, then general, exercises were recommended. Noted that “to date Simon has improved albeit with a mild recurrence of left-sided LBP this week”.Report – A Webster 21.07.16
Noted that his low back pain had resolved with most of his activities during a normal day. Noted that driving for more than an hour was still a provocative activity for low back pain. The physiotherapist noted that he had returned to most of his usual recreational pursuits and ADL. Noted that his low back pain is relatively stable and silent with his usual activities and cited prolonged driving as his main concern.Report – A Webster 12.12.16
Noted that despite improvement he still had LBP after a sustained period of time driving his vehicle.Page 6 of Motor Accident Personal Injury Claim Form, under item 14 - noted the motor accident.
This was shown to Mr Wilson. He explained that he had been driving in the outside (non-kerb) lane with a car turning to the right ahead of him, and a car (Maximus) behind that turning car. As he was about to pass the car turning right on the inside, the vehicle behind the turning car (Maximus) entered the kerb lane and caused the collision with the offside rear of his vehicle.In the accompanying medical certificate dated 12.02.16, Dr Tockar, GP, noted left sided low back muscle spasm with his mobility satisfactory. Remedial massage recommended, along with analgesia.
Complete record, as at 10.04.18 Randwick Medical – Dr R Tockar, GP.
Somac medication regularly from year 2000.06.05.09, Dr R Gupta, GP. Sore back and neck noted associated with a cough. No investigations.
05.08.13, Dr Tockar “reason for contact: back pain and now settling, has been to chiropractor. Flares up three times a year. Needs a cert”.
No investigations recommended.POST accident
25.01.16, Dr Tockar,
“reason for contact:
back pain old problem.
he thinks it is a disc problem.
side-swiped car five days ago.
pain lower back yesterday and could not get out of bed.
suggest use Panadeine and heat.
mechanical type pain.
has not been off work.
not planning to thru MAA”
His GP felt the accident had triggered muscle imbalance and acute pain. To continue with the usual massage.
04.02.16, Dr Tockar noted that the back pain had been getting worse. Recommendation for x-ray lumbosacral spine. Continue minor medication. Maintain upgrading program.
Expect that the musculoskeletal problem would improve within two weeks.12.02.16, Dr Tockar
“He is still struggling with the back pain. No leg or buttock pain.
still working.”19.02.16, Dr Tockar
Noted to be using Panadeine with continuing localised low back pain. No problems with sleeping at night and managing at work.26.02.16, Dr Tockar
Noted that the back pain was still not resolving and he was working through that. He was able to drive. No pain down the legs.
Has not seen chiropractor this time.
Noted to be similar to old injury but worse. Noted that he did have an MRI about 15 years ago. Further MRI recommended.04.03.16, Dr Tockar
Continuing symptoms. MRI result. Trial of Lyrica.24.03.16, Dr Tockar
Noted to have had a couple of days off. Some pain at night. Location of pain in lower back and buttocks. Nil in legs.08.04.16, Dr Tockar
Noted to have pain in the low back and buttocks. Eight sessions of physiotherapy with WC.29.04.16, Dr Tockar
Good results from stretching with physiotherapist. Still has lower back pain left side. Intermittently. Worse in the mornings. He feels things are slowly improving. Continues to work normally with some restrictions specified.13.05.16, Dr Tockar
Undergoing regular physiotherapy. Driving to Wetherill Park one hour away, twice a week. doing well and to continue with physiotherapy.
27.05.16, Dr Tockar
Stiffness and pain in the mornings and then eases. Attending physiotherapy. Lower back to left side. Not down his legs. MRI changes noted. Also stated that prior to the accident he did not have any ongoing back pain.
Panel Comment: This would not seem consistent with the GP entry of 25.01.16 ‘back pain old problem’” and 26.02.16 “is similar to old injury but worse”.Noted to be not taking analgesics and overall the GP commented that the pain did not appear to be settling. Noted to have some issues dealing with psychosocial side of chronic pains. Bone scan organised.
03.06.16, Dr Tockar
Activity at L5/S1 with the bone scan. Suggestion of steroid injection.10.06.16, Dr Tockar
Noted that post-injection he was largely pain-free.24.06.16, Dr Tockar
Noted that the pain resolved after the injections but then recurred some afterwards. Noted that he was working normal hours but long driving was a problem.02.08.16, Dr Tockar
Noted to have chronic pain, was still working and driving. Does not need to take analgesics.18.08.16, Dr Tockar
Noted to have had a couple of days off work with the back; that the back pain continued to be localised to the low back with no pain-free days.25.08.16, Dr Tockar
Noted to have a flare of symptoms after diving into a pool with settling of that flare. Several weeks off driving work restriction.09.09.16 and 27.09.16, Dr Tockar
Continuing symptoms and referral to Dr Loefler, Orthopaedic Surgeon.07.10.16, Dr Tockar
Post review with Dr Loefler - no surgical treatment recommended. Further conservative treatments.09.01.17, Dr Tockar
Referral to Dr J Bertoch, Rheumatologist13.07.17, Dr Tockar
Continuing with physiotherapy. Noted to be still driving large distances although modifies his journeys. Noted that he has pain every day. Just managing without analgesics.19.09.17, Dr Tockar
Noted that Mr Wilson was considering surgery.
16.03.18, Dr Tockar
We accept that Mr Wilson only had intermittent back pain prior to the motor accident which did not affect his capacity to work in his pre-injury employment.
Lumbar spine injury
We accept that the claimant had a pre-existing degenerative condition at L5/S1. Whilst there were some past back symptoms, we accept that Mr Wilson was not consistently symptomatic prior to the motor accident. In that respect, acknowledging ongoing chiropractic treatment to the entire spine, we accept that the claimant was relatively asymptomatic at the time of the motor accident.
The claimant’s evidence to the Medical Assessors of onset of back symptoms on the second or third day was consistent with versions recorded elsewhere.
It is medically plausible that pain occurring within days of the motor accident is caused by the motor accident. The alternative view proffered by Associate Professor Shatwell that it relates to the underlying degenerative condition is possible although less likely because the claimant’s condition was essentially asymptomatic. It is otherwise unclear what precise history the doctor relied upon when opining that the motor accident was causatively irrelevant to the onset of symptoms.
The initial clinical note by the general practitioner is that there was pain in the lower back on the previous day and Mr Wilson could not get out of bed. That note, written briefly and noting the caution applicable to such notes[86], is not inconsistent with an exacerbation of pain occurring before the fourth day. The note states that the back pain was of such severity that Mr Wilson could not get out of bed on the fourth day.
[86] See Mason v Demasi [2009] NSWCA 227.
The claimant’s case on causation of injury is supported by his general practitioner who was aware of his condition both before and after the motor accident. The doctor supports the causal link despite the insurer’s submissions which selectively quote portions which suggest otherwise.
The initial post-accident chiropractor notes support an exacerbation of back pain within a short period of the motor accident.
The claimant’s case on causation is supported by a number of doctors including three previous Medical Assessors, albeit with some inaccurate histories noted, outlined earlier.
The insurer submitted that Dr Loefler’s opinion lacked weight because he was unaware of prior symptoms. However, his first report dated 4 October 2016 referred to pre-existing back pain in the lumbosacral region[87] and his reports can be read together.[88] The treating orthopaedic opinion (and that of Dr Bertouch, rheumatologist), supports the claimant’s case on injury.
[87] Claimant’s bundle, page 119.
[88] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [87].
Dr Bentivoglio, qualified by the insurer, accepted that there was a low back injury.
Dr McIntosh expressed a contrary view based on generalisations although accepted that an underling condition increased the likelihood of injury. Expressing generalisations about outcomes, such as expected consequences, does not consider the specific circumstances of the individual. Accordingly, Dr McIntosh’s opinion based on general statistics rather than the specific individual detracts from the weight to be attached to his opinion.
Further, Dr McIntosh on his own does not determine causation of injury or whether the effects of the injury recovered. His opinion is only part of the general matrix that must be considered when determining the overall issue.
Whilst there are concerns with the acceptance of many of the opinions, both in favour of Mr Wilson and against, we are not bound to accept any opinion.
We are not satisfied based on the interpretation of the scan evidence and the nature of the motor accident, that it was sufficient to aggravate the underlying pathology. We agree with those opinions that the pathology was pre-existing.
As the claimant submitted, the clinical notes of the general practitioner refer to consistent lumbar spine complaints following the motor accident. Those notes are consistent with the comments expressed by the physiotherapist of the ongoing nature of back complaint and the claimant’s history provided to the Medical Assessors. However, there did appear to be some improvement of lumbar symptoms during mid 2016 (Physiotherapy reports) after an initial flare of symptoms post-accident, then with a spontaneous flare of symptoms after the initial assessment by
Dr Loefler.The claimant referred to the decision of the Court of Appeal in Glen v Sullivan. Sackville AJA stated:[89]
“48. Mr Rewell SC, who appeared with Ms Kumar for the respondent, submitted that the principle stated in Purkess v Crittenden does not apply to the circumstances of the present case. He pointed out that in both Watts v Rake and Purkess v Crittenden, the issue was whether the plaintiff’s pre-existing degenerative condition would have led to incapacity in due course even if the accident had not occurred. Mr Rewell contended that the present case is distinguishable because it does not involve any supervening incapacity. The issue is whether the appellant’s continuing incapacity is attributable to the accident or, as the primary Judge found, is no longer causally related to the accident.
49. In my view, notwithstanding the factual difference identified by Mr Rewell, the principle stated in Purkess v Crittenden applies to the present case. There was no dispute at the trial or on the appeal that the accident had caused the appellant to sustain some physical and psychiatric injuries. It was also not in dispute that the appellant continued to suffer from serious psychological disabilities at the date of the trial. In principle, it is difficult to see why the respondent should not have borne the burden of adducing evidence to rebut what Dixon CJ in Watts v Rake referred to as the presumption that the appellant’s continuing disabilities were causally related to the accident. To adapt the language in Purkess v Crittenden, once the appellant made out a prima facie case that her continuing psychiatric disabilities resulted from the respondent’s negligence, the onus of adducing evidence showing that the disabilities were wholly the consequence of the appellant’s pre-existing condition fell on the respondent.
50. This conclusion is supported by the facts of Watts v Rake. It is true that one issue in that case was whether the plaintiff would have become incapacitated in due course even if the accident had not occurred. But another issue was whether part of the plaintiff’s “present condition [was] traceable to causes other than the accident”. The Court said that the defendant bore the onus of adducing evidence in relation to both issues.”
51. It follows that Mr Sheldon is correct to submit that the respondent bore the onus of adducing evidence that the appellant’s psychiatric disabilities attributable to the accident had resolved before the date of the trial. But if the respondent did adduce such evidence, the burden of persuading the trier of fact on the balance of probabilities remained on the appellant.
[89] At [49]-[50].
The principle is applicable to the present case if Mr Wilson has established injury and ongoing symptoms. In those circumstances there is a requirement on the insurer to lead evidence that the effects of the injury had ceased. That principle may have difficulties of application where medical assessments are determined by Medical Assessors and Review Panels because of the medical expertise contained within those bodies. In any event there is evidence adduced by the insurer that the aggravation had ceased. Otherwise, subject to obligations of natural justice, the Panel is not bound by any medical opinion.
Dr McIntosh opined that any aggravation of the pre-existing changes would be of short duration. This opinion does not accord with the medical expertise on the Panel, and it is arguably outside the expertise of Dr McIntosh. If there is an aggravation or an exacerbation of degenerative changes then the outcome of the inquiry will be fact sensitive to the individual. Expressing generalisations that the outcome will last of certain duration does not consider individual circumstances and certainly does not accord with Mr Wilson’s history, which is of continuing symptoms.
Dr McIntosh provided no logical reasoning why the aggravation or exacerbation had ceased. Dr McIntosh purports to hold out expertise that the aggravation would have ceased but he is not a medical practitioner, presumably has never treated any persons for medical conditions caused by motor accidents and otherwise ignores the histories provided by Mr Wilson that the condition did not resolve. We do not accept his opinion that the aggravation would have ceased.
Dr Bentivoglio appears to have concluded that any exacerbation would have ceased. As the claimant correctly submitted, portions of his opinion apply incorrect tests on causation such as referring to “main contributing factor”, a test appearing under workers compensation legislation.[90] The doctor otherwise does not explain why any exacerbation would have ceased if the claimant’s account is otherwise accepted as being accurate.
[90] See s 4(b) of the Workers Compensation Act 1987.
The claimant was susceptible to injury based on his underlying pathology. We accept that the motor accident exacerbated the claimant’s condition rendering it symptomatic. We accept that the claimant did not recover from the onset of pain caused by the motor accident, representing an aggravation from the motor accident. In that respect our view closely resembles that expressed by Dr Tockar that the accident “triggered muscle imbalance and acute pain”.
We are satisfied, based on the continuous record of complaints and the claimant’s history, that there was an ongoing exacerbation of pain following the motor accident resulting in the need for the surgical treatment. The ongoing nature of the complaints are explained in part by the claimant’s susceptibility because of his underlying degenerative condition and, as the physiotherapist observed, Mr Wilson’s beliefs and propensity for developing chronic back pain.
Whilst there was some amelioration of the exacerbation of pain as discussed by the physiotherapist, that exacerbation did not resolve. In that regard we rely on the recorded histories contained in the records and the claimant’s history provided to the Medical Assessors. Accordingly, we are satisfied that the motor accident exacerbated the lumbar pain on an ongoing basis.
Causal relationship between motor accident and treatment
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[91] That means that there can be other non-related causes for the need for treatment included age related degenerative changes.
[91] [2018] NSWSC 1710 (Phillips) at [29].
Our findings on injury recounted above are relevant to the issue of the causal nexus between the motor accident and the surgery.
A material cause of the lumbar spine surgery was aggravation of back pain from lumbar degenerative changes caused by the motor accident. Undoubtedly other factors were also causative of the need for treatment including the pre-existing degenerative changes.
Further, as the Court of Appeal identified in McKenzie v Wood[92], a hip operation which was likely to occur in the future but had become urgent was a recoverable expense.
[92] [2015] NSWCA 142 at [10].
Findings of fact in other cases do not create legal precedent.[93] However. McKenzie is an example of where the Court has recognised that a medical expense is recoverable where the need for treatment would have ultimately occurred.
[93] Edwards v Noble [1971] HCA 54 at [14] per Barwick CJ.
We accept that the exacerbating effects of the motor accident were ongoing through the development of pain and that was a material contributing factor to undertaking the surgical procedure.
In those circumstances, based on the finding of injury and its consequences, we conclude that the surgical treatment was materially caused by the motor accident.
Reasonable and necessary in the circumstances
Mr Wilson is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[94], Grove J stated:[95]
“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”[94] [2003] NSWCA 52 (Clampett).
[95] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[96]
[96] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[97] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment; and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[97] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
A poor outcome does not mean that the treatment was not reasonable and necessary. The Panel endorses the following observation from Diab:[98]
“Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.”
[98] Diab at [89].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
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. This is because s 58 of the MAC Act refers to treatment “provided or to be provided to the claimant”, that is the specific claimant the subject of disagreement between the parties.
There has been a tendency to conflagrate the issues of “reasonable and necessary in the circumstances” with the test of whether the treatment is caused by the accident. The issues are distinct as the terms of the legislation show. Indeed, we were generally unassisted by the parties on this issue.
There is no doubt that Mr Wilson suffers from a degenerative spine. The surgical procedure undertaken, is both appropriate, and an accepted medical procedure.
The surgery is obviously expensive.
The pathology and Mr Wilson’s complaints support the medical proposition that the lumbar surgery was reasonable and necessary. The procedure was a recognised medical procedure treating this pathology. In that respect we also independently acknowledge and consider the opinion of the treating surgeon who performed the surgery.
Alternative conservative treatment through injections and physiotherapy failed to resolve Mr Wilson’s pain.
The outcome of the surgery was successful and that supports the proposition that the surgery was an appropriate procedure for the claimant’s condition.
In the circumstances of Ms Wilson’s case, we accept that the surgical procedure was reasonable and necessary in the circumstances.
Assessment of impairment
Clause 1.7, set out in full earlier, relevantly provides that whilst there is no simple common test of causation, “the accepted approach involves determining whether the injury (and associated impairment) was caused or materially contributed to by the motor accident”.
Our finding that the lumbar spine surgery was causatively related to the motor accident means that the assessment of permanent impairment is 20%. That assessment is made based on chapter 3, pages 102-107 of AMA 4 and Tables 7 and 8 of the Guidelines.
We are satisfied that there should be a deduction pursuant to cl 1.31 of the Guidelines. The Guidelines provide for the need for objective evidence of a symptomatic impairment in the same region. Various doctors have assessed this at 5% under DRE II based on an intermittent symptomatic spondylosis at the same level. We are not satisfied that there was objective evidence of an assessable symptomatic impairment in the same region.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
The overall permanent impairment is 20%.
TREATMENT DISPUTES
The parties have provided no assistance for the determination of the multiple treatment disputes. The following reasons should be viewed in light of the absence of proper assistance. The legal principles of “reasonable and necessary” and causation, discussed above, are applied to these disputes.
Consultation with Dr Bertouch
The report by Dr Bertouch, rheumatologist is described earlier. The treatment is reasonable and necessary and causatively related to the motor accident as it was appropriate that a rheumatologist consider the claimant’s condition.
Scan evidence - treatment disputes 3 - 8 and 13 - 16
The claimant had various scans including updated scans as he was undergoing a fusion operation. The Panel accepts that these are appropriate medical treatments designed for diagnostic purposes and relatively inexpensive. The treatment is reasonable and necessary and causatively related to the motor accident.
Abdomen and hip scans – treatment disputes 9 - 12
The Panel does not accept that there is any injury to the hips or abdomen. We do not accept that these scans are causatively related to the motor accident.
0-61 attendances with Dr Tockar general practitioner between 25 January 2016 and 21 February 2020 - treatment disputes 17 and 18
We were not advised why the 61 attendances occurred. The 20 visits in the first six months are necessary given the treatment during this period. Thereafter, we accept that visits to the general practitioner on a three-monthly basis was necessary. Over the four-year period we accept that 34[99] attendances to the general practitioner is “reasonable and necessary” for the ongoing back condition. Accordingly, those 34 attendances are accepted as being causatively related to the ongoing back condition.
[99] This figure is 20 in the first six months then four a year over the next 3.5 years.
Hospital stay, inpatient treatment and surgical procedure – treatment dispute 19 and 20
We have provided reasons why the surgery was causatively related to the moor accident and the surgical procedure was reasonable and necessary. Accordingly, the associated treatment such as the hospital expenses are similarly causatively related to the motor accident and reasonable and necessary.
Consultations with Dr Loefler – treatment disputes 21 and 22
The various reports by Dr Loefler show the care provided by the specialist relate to the motor accident. The four consultations were reasonable and necessary as appropriate specialist treatment in the matter particularly as the doctor performed spinal surgery. There would have been a need for consultations both when determining whether the surgery should proceed and after the surgical procedure. The treatment related to the back condition which we have found was causatively related to the motor accident.
0-24 consultations with Andrew Keady, Exercise Physiologist between 18 October 2016 and 21 February 2017 – treatment disputes 23 and 24
The use of an exercise physiologist is an entirely appropriate procedure to train an injured claimant and reduce the need for ongoing physiotherapy. Whilst the number of appointments, appear significant, we defer to the overall number as being reasonable and necessary in the circumstances.
0-251 consultations with physiotherapist Andrew Webster in relation to the lumbar spine between 19 April 2016 and 20 February 2020 – treatment disputes 25 and 26
This issue exposes the lack of assistance from the parties. Physiotherapy is “necessary” if it provides a short-term measure of alleviating symptoms. Prolonged physiotherapy without the alleviation of symptoms does not satisfy that criterion. We consider that physiotherapy would have been “necessary” in the period following the motor accident and following surgery.
In the absence of assistance from the parties, we consider that two courses of physiotherapy over three months each, would satisfy the criteria of “necessary”. In these circumstances doing the best we can, we allow 50 sessions of physiotherapy as being “reasonable and necessary”. We otherwise observe that the treatment probably satisfies the causation test as treatment provided by a health expert for the back condition. However, we do not accept that the extent of the treatment was “necessary”.
0-21 consultations with rehabilitation provider, Work Focus in relation to the lumbar spine between 1 March 2017 and 17 February 2020 – treatment disputes 27 and 28
The evidence shows that the back injury resulted in an inability to drive longer hours and the subsequent loss of employment. In those circumstances, the use of a rehabilitation provider to assist the claimant in obtaining other employment was reasonable and necessary.
The loss of employment was due to ongoing back pain due to the injury. Accordingly, it is causatively related to the motor accident.
0-2 specialist consultations and CT imaging for guided facet joint injections in relation to the lumbar spine on 9 June 2016 and 14 July 2016 – treatment disputes 29 and 30
CT guided facet injections are an appropriate conservative treatment prior to surgery being undertaken. Two injections are appropriate as the second injection can be successful. The history is that the claimant obtained temporary relief from the procedures.
The Panel accepts that both injections are reasonable and necessary and causatively related to the motor accident.
FUTURE TREATMENT DISPUTES
Future general practitioner consultations – treatment disputes 31 and 32
The treatment disputes are poorly worded. We assume that the dispute concerns the number of consultations with a general practitioner (up to 12) on an annualised basis.
There will be ongoing pain and restriction of movement for the injury and resulting surgery which will require consultation with a general practitioner. It is likely that the condition will remain unchanged if not deteriorate given the nature of the surgical procedure. We assess this need based on what is reasonable and necessary as twice per year. The need will continue for the life expectancy given the nature of the surgical procedure.
Future physiotherapy consultations – treatment disputes 33 and 34
Future physiotherapy treatment may be required on a needs basis when there are short term deteriorations of the condition. Regular physiotherapy on a weekly or otherwise intermittent basis is not “necessary”. Whilst there is a contingency that there will be a need for future physiotherapy when there are infrequent but expected deteriorations, there is no basis to find on the balance of probabilities whether any specific requirement for physiotherapy treatment.
For the same reasons as is expressed below in relation to future spinal fusion, we cannot be satisfied on the balance of probabilities of any specific number for future physiotherapy.
Future Pilates – treatment disputes 35 and 36
Whilst we accept that Pilates is desirable for developing and maintaining core, we are not satisfied that the any number of treatments is necessary or causatively related to the motor accident.
Future 0-1 surgery for lumbar fusion at L4/5 – treatment disputes 37 and 38
The medical evidence indicates that there is a possibility of future surgery at the adjacent level because of the stress imposed by the lumbar fusion at L5/S1. The need for adjacent level surgery is in the order of 10-20% over an extended period of at least 10 years following the previous surgery. This conclusion accords with the medical opinions expressed by Dr Giblin and Associate Professor Shatwell that the surgery may occur.
The Panel is providing its determination on the balance of probabilities on specific medical assessments. On balance, we conclude that an adjacent level fusion is unlikely to occur and therefore is not necessary or causatively related to the motor accident.
However, this conclusion is not the same as a finding of a future loss in accordance with the principles discussed in Malec v Hutton[100] when a Court assesses damages based on a future contingency. Medical Assessors (and Review Panels) are making a different determination which is otherwise clear from the questions that have been framed for our consideration.
CONCLUSIONS
[100] [1990] HCA 20 per Deane, Gaudron and McHugh JJ at [7].
The certificate issued by Medical Assessor Bodel for the permanent impairment is revoked as we have not made any deduction. A replacement certificate is also issued for the treatment and care disputes.
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