Insurance Australia Ltd t/as NRMA v Sear

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Ltd t/as NRMA v Sear [2022] NSWPICMP 15
CLAIMANT:	Gillian Sear
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW Panel:	Principal Member John Harris Dr Drew Dixon Dr Geoffrey Stubbs
DATE OF DECISION:	8 February 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant was involved in a motor accident in 2013 and underwent cervical spine surgery in 2016 and lumbar spine surgery in 2017; the medical disputes related to whether the surgical procedures were reasonable and necessary and whether they were caused by the motor accident and the assessment of permanent impairment; Held - discussion of the insurer’s refusal to narrow the issues and whether such a position was inconsistent with the concept of a new assessment by a Review Panel under the MAC Act; Allianz Australia Insurance Ltd v Rutland considered; expert evidence of biomechanical engineer considered relevant but not determinative; the acceptance or rejection of his evidence in other cases not relevant; Edwards v Noble applied; factual findings made that lumbar spine injured in the motor accident, but the cervical spine was not injured; the claimant admitted that neck symptoms only arose after two weeks, and other histories suggested that it was much longer; Panel did not accept that the delay in onset of symptoms together with the absence of treatment established injury to the cervical spine; finding made that the motor accident materially contributed to the need for surgical treatment of the lumbar spine; AAI Ltd v Phillips applied; surgical treatment held to be reasonable and necessary in the circumstances; claimant’s submission that a rejection that the surgery was reasonable and necessary is a finding of medical malpractice rejected; considerations given to factors discussed in Diab v NRMA; acceptance that the treatment was a last resort and conservative treatment had failed; the surgical treatment, whilst extensive, was appropriate and accepted medical procedures; claimant’s evidence that she had a positive outcome accepted and consideration given to the patient/doctor relationship which was unlike a pure medicolegal opinion; findings made that subsequent motor accident was a temporary exacerbation that resolved; assessment of impairment based on multilevel lumbar surgery assessed at 20% impairment as surgery found to be causatively related to the motor accident.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

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 1 July 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10%:

· Lumbar spine – soft tissue injury and aggravation of degenerative changes
· Scarring as a result of lumbar spine surgery.

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 dated 1 July 2021 and issues the following certificates.

The following treatment and care:

The L3-S1 lumbar interbody fusion (stage 1) and L5-S1 decompression and interbody fusion (stage 2) anterior and posterior surgery performed by Dr Hsu on 12 April 2017

RELATES TO THE INJURY caused by the motor accident.

The following treatment and care:

The C4-C7 anterior fusion and C3-T1 posterior fusion surgery performed by Dr Hsu on 18 November 2016

DOES NOT RELATE TO THE INJURY caused by the motor accident.

Reasonable and Necessary in the circumstances

Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999

The following treatment and care:

The L3-S1 lumbar interbody fusion (stage 1) and L5-S1 decompression and interbody fusion (stage 2) anterior and posterior surgery performed by Dr Hsu on 12 April 2017; and

The C4-C7 anterior fusion and C3-T1 posterior fusion surgery performed by Dr Hsu on 18 October 2016

IS REASONABLE and NECESSARY in the circumstances.

REASONS

Background

Ms Gillian Sear (the claimant) was involved in a motor accident on 6 June 2013 when another vehicle rolled backwards down a hill and impacted into her vehicle (the motor accident). The exact circumstances of this motor accident are in dispute.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Sear any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
Ms Sear was involved in a further motor accident on 29 October 2015 (the 2015 motor accident). The effects of the 2015 motor accident require consideration which is discussed later in these reasons.
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 specified medical treatment was “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.
The other medical disputes concern surgeries to the cervical spine undertaken on 18 October 2016 and lumbar spine on 12 April 2017. These treatment disputes were described by the Proper Officer as follows:[3]
“Whether the L3-S1 lumbar interbody fusion (stage 1) and L5-S1 decompression and interbody fusion (stage 2) anterior and posterior surgery performed by
Dr Hsu on 12 April 2017 relates to the injury caused by the accident.
Whether the L3-S1 lumbar interbody fusion (stage 1) and L5-S1 decompression and interbody fusion (stage 2) anterior and posterior surgery performed by
Dr Hsu on 12 April 2017 is reasonable and necessary in the circumstances.
Whether the C4-C7 anterior fusion and C3-T1 posterior fusion surgery performed by Dr Hsu on 18 October 2016 relates to the injury caused by the accident.
Whether the C4-C7 anterior fusion and C3-T1 posterior fusion surgery performed by Dr Hsu on 18 October 2016 is reasonable and necessary in the circumstances.”
[3] Insurer’s bundle, page 817.
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[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Kenna who issued a medical assessment certificate dated 1 July 2021. Medical Assessor Kenna concluded that all surgical procedures 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%.

The review

The application for referral of the medical assessments to a review panel were 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.[5]
[5] Section 63(7) of the MAC Act.
On 20 October 2021, 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.[6]
[6] Section 63(2B) of the MAC Act, Insurer’s bundle, page 831.
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[7] 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).
[7] 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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] 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.
We observe that s 42 of the PIC Act provides that the guiding principle for the PIC Act and the Commission rules is to facilitate the “just, quick and cost effective resolution of the real issues in the proceedings”.

Procedural history

To understand the dispute, it is necessary to set out in some detail the procedural history in this matter and in relation to the 2015 motor accident.
Medical Assessor Kenna provided a certificate dated 8 February 2019 when he concluded that Ms Sear suffered injury to the neck and back and that both surgical procedures were related to the injuries caused by the motor accident and reasonable and necessary in the circumstances. He otherwise concluded that the surgical procedures did not relate to the injuries caused by the 2015 motor accident.
The history obtained by the Medical Assessor was that Ms Sear injured her left elbow in early May 2013 and her left ankle on 25 May 2013 which required immobilisation in a walking boot but was “otherwise well”.
At the time of the motor accident Ms Sear was on Mersyndol or Panadeine Forte as well as Nurofen Plus. Low back pain was noticed after five days, and neck pain developed at a subsequent time.
The Medical Assessor concluded that the entirety of the ongoing chronic neck and back disability were due to the motor accident and that the 2015 motor accident caused a short-term flare up of both the back and neck conditions which settled with exercise and physiotherapy.[11] He also concluded that both surgical procedures were not causatively related to the 2015 motor accident.
[11] Claimant’s bundle, page 117.
The insurer lodged an application to review the decision on 28 March 2019. On 5 June 2019 the Proper Officer dismissed the review application.[12]
[12] Claimant’s bundle, page 122.
The insurer then lodged a further review application based on further evidence including a report provided by Dr McIntosh. On 18 August 2020 the Proper Officer referred the medical disputes for further assessment.[13]
[13] Insurer’s bundle, page 811.
We note that the further assessment only related to the motor accident and did not comment on what appeared to be an acceptance by the parties of the Medical Assessor’s findings concerning the 2015 motor accident.
Medical Assessor Kenna provided a further certificate dated 1 July 2021.[14] The Medical Assessor concluded that both surgical procedures were reasonable and necessary in the circumstances and related to the injuries caused by the motor accident.
[14] Claimant’s bundle, page 52.
The Medical Assessor referred to his initial certificate of 8 February 2019 and the further evidence that had been filed since the previous certificate. The Medical Assessor confirmed the history of symptoms in accordance with the initial certificate. It was recorded that the flare up of symptoms following the 2015 motor accident was six weeks and settled to the pre 2015 motor accident level.[15]
[15] Claimant’s bundle, page 58.
The Medical Assessor recorded a history that Ms Sear derived “great benefit” from the two operative procedures with substantial decrease in the referral of both upper and lower limb symptoms describing an 85% improvement in symptoms.[16]
[16] Claimant’s bundle, page 59.
On commentating on the further submissions, the Medical Assessor described one or two as “demonstrably inaccurate, if not frankly untrue”.[17] The submissions supporting that application were partly based on Dr Coroneous further report.
[17] Claimant’s bundle, page 64.
The Medical Assessor confirmed the “excellent response from the point of view of the level of pain which has greatly decreased” and noted that the surgery was aimed at providing some quality of life rather than returning the claimant to teaching which was “never going to be feasible”.[18] He confirmed his view that the operative procedures were both reasonable and necessary and causatively related to the motor accident.
[18] Claimant’s bundle, page 64.
After reviewing further material, including the report of Dr McIntosh, the Medical Assessor confirmed his earlier opinion.

Oral hearing

The matter was initially allocated a conference for the purposes of the Panel requiring responses by the legal practitioners for the purposes of limiting the issues in dispute. The allocation of a conference also arose in the context of a request from the claimant “to discuss the review”.[19]
[19] Claimant’s letter dated 26 October 2021.
Ms Hornsby, the insurer’s legal representative then requested the Panel to “reduce to writing the questions the Review Panel proposes the parties to answer”.[20] On 22 November 2021 the Panel, through the Commission’s officer indicated that it would not be providing questions in advance.
[20] Email dated 19 November 2021
The insurer then responded by email that day asserting that the Panel was not conducting a new assessment and that it “will not be agreeing to any limiting of the dispute either now or at the telephone conference”. The insurer also objected to the Panel requiring the parties “to address questions at the telephone conference on Thursday without notice” and fairness required that the parties “be able to consider the proper response to the questions”. It asserted that “as a matter of procedural fairness to both parties, the insurer again requests that any questions be given on notice”.
The claimant then shared the insurer’s concerns about the absence of notice of questions although expressed it in the context of incurring further costs which were not recoverable. Given the parties’ position, the oral hearing was cancelled.
The Panel advised the insurer that its responses may be mentioned in its determination, and it was advised to justify its position[21]. The insurer subsequently submitted[22] that they were required to be given notice “of the case sought to be made against them” and be “given a reasonable opportunity to reply” citing Kioa v West[23] and Australian Broadcasting Tribunal v Bond.[24]
[21] See paragraph [43] herein.
[22] Letter dated 15 December 2021
[23] (1985) 159 CLR 550 at 582, 584-595.
[24] (1990) 170 CLR 321 at 385.
The insurer’s submission is misconceived. To suggest that the Commission, unlike any other jurisdiction, is required to provide advance notice of questions directed to “limiting any issues in dispute” to the parties is novel and does not, as the insurer disrespectfully asserted, involve the Panel making a case against it. The cases cited by it do not support a proper basis to assert that a Tribunal cannot ask questions on the legal representatives.

Issues in dispute and not in dispute

The claimant submitted that the following issues were “not in dispute”:[25]
(a)   there is no dispute that the claimant underwent spinal surgery at the hands of Dr Hsu, with cervical spinal surgery performed on 18 October 2016 and lumbar surgery on 12 April 2017;
(b)   there is no dispute that in undergoing such surgery, the claimant relied upon the advice provided to her by Dr Hsu;
(c)   there is seemingly no real dispute that the claimant has consistently reported an improvement in the levels of pain from both her neck and back as a consequence of the surgery;
(d)   there is seemingly no dispute that as a consequence of the surgery, the claimant's whole person impairment (WPI) would (subject to issues of causation) be assessed at 41% (25% for the cervical spine, 20% for the lumbosacral spine and 1% for surgical scarring);
(e)   despite protestations from NRMA with regards a prior history of back pain, there is seemingly no real dispute that the claimant had any assessable impairment in her cervical spine or lumbar spine prior to the subject accident. No medico-legal expert on behalf of NRMA has actually assessed pre-existing impairment that would reach DRE II (5% WPI) in either the cervical or lumbar spine prior to the subject accident. To the contrary, some of the defendant medico-legal experts (and in particular, Dr Coroneos) adopt the approach that there was no impairment prior to the subject accident and no impairment after the subject accident. This is not really a case about pre-existing impairment, but rather about whether the accident caused substantive impairment, and
(f)    there is no dispute that the second motor vehicle accident of 29 October 2015 was of modest consequence and gave rise to no WPI. The real issue is the WPI stemming from the first motor vehicle accident of 6 June 2013.
[25] Claimant’s bundle, page 33-34.
The insurer agreed with this submission.[26]
[26] Insurer’s bundle, page 25, [5].
The claimant submitted that what was “really in dispute is whether the motor vehicle accident of 6 June 2013 has given rise to the consequential surgical procedures to the claimant’s cervical and lumbar spines and whether that surgical treatment was reasonable and necessary”.[27]
[27] Claimant’s bundle, page 34, [11].
The insurer agreed with this summary adding “that the degree of permanent impairment caused by the accident is also in dispute”.[28]
[28] Insurer’s bundle, page 25, [6].
On 30 November 2021 the Panel issued a further Direction on the parties as follows:
“1.     The decisions of the President’s Delegate dated 20 October 2021 and 21 October 2021 concern the assessments of Medical Assessor Kenna dated 1 July 2021 which relate to the 2013 accident. In the assessment dated 8 February 2019, Medical Assessor Kenna determined that the 2015 motor accident did not cause injury (see claimant’s bundle, p 123) and/or the effects were “minor” and that the respective surgeries were not causally related to that accident. The parties are directed to address:
(a)whether the findings for the 2015 motor accident are accepted as part of the medical assessments for the 2013 motor accident;
(b)whether the Panel can refer to the findings of Medical Assessor Kenna concerning the effects of the 2015 motor accident when assessing the impairment and relationship with the subsequent surgeries from the 2013 motor accident; and/or
(c)what submissions are now made concerning the effects of the 2015 motor accident.
2.    The parties are directed to produce any clinical notes from Dr Davis,
Dr Frost and/or Ryde Hospital if these documents are in their possession, noting the certificate dated 16 October 2013 and report dated 23 January 2014 is before the Panel (claimant’s bundle, pp 340 – 343).
3.    The claimant submissions (see for example claimant’s bundle, p 35) assume that it either succeeds or fails on the low back injury and the cervical spine injury. The parties are directed to address whether the alternative scenario that the claimant succeeds on the back injury, and not the neck injury.
4.    Page two of the statement of Jacqueline Sear (claimant’s bundle, p 464) is missing. The claimant is to provide the full statement.
5.    By email dated 22 November 2021, the insurer through its legal representative asserted that “procedural fairness” required that “any questions be given on notice”. This parties are advised that this assertion may be mentioned in the Panel’s determination and they are provided with an opportunity to justify that submission.
6.    The insurer is to refer by page reference in the bundles to the evidence that supports the submissions that the onset of pain and/or the need for the surgical procedures were due to using crutches, other falls and/or prior conditions.
7.    The insurer is to reply by close of business, 14 December 2021.
8.    The claimant is to reply by close of business, 21 December 2021
9.    The claimant will be examined by audio-visual link on 17 January 2022 at 5 pm provide there is proper compliance with these Directions noting that the parties have accepted that any examination can proceed by audio-visual means. All three members of the Panel will be present at that time. Details of the appointment will be forwarded in due course by the Commission.”

The parties accepted, in response to question 3 of the further Direction, that the claimant did not necessarily succeed or fail in respect of both injuries and “that it is open for the [P]anel to find causation in relation to one and not the other”.[29]
[29] Claimant’s submission dated 17 December 2021 and Insurer’s submission dated 15 December 2021.
The insurer subsequently submitted[30] that it was “a matter for the Panel to determine whether the 2015 accident was a cause of the claimant’s injuries and surgeries” and that it would be inappropriate to say whether they accepted that part of Medical Assessor Kenna’s decision “as it has the potential to lead the Panel into error” citing Allianz Australia Insurance Ltd v Rutland[31] .
[30] Insurer’s letter dated 15 December 2021.
[31] [2015] NSWCA 328 (Rutland) at [25] - [27].
The claimant reluctantly accepted this approach and asserted that the Panel was required to review “all issues afresh”.[32]
[32] Claimant’s letter dated 17 December 2021.
We consider that the insurer has misconstrued Rutland. We discuss this later in these Reasons. The submission it subsequently made was inconsistent with its acceptance set out earlier at paragraphs [39] – [42] herein. Indeed, if the parties cannot agree on anything then even their statement of issues is somehow an unlawful fetter on a panel’s requirement to conduct a new assessment.
The objects of the Commission include the encouragement of early dispute resolution. In particular, the Commission is required to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[33]
[33] Section 3 of the PIC Act.
We do not consider the insurer’s position to reflect the objects set out in the PIC Act nor does the submission on the 2015 motor accident accord with the evidence in the matter. We return to this issue later in these Reasons.

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[34]. In Raina v CIC Allianz Insurance Ltd[35] 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.”
[34] See s 3B(2) of the Civil Liability Act 2002.
[35] [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.

Claimant’s statement evidence

Ms Sear provided a statement dated 5 August 2014.[36] She described a past medical history which included back pain at 17 years of age which settled within a month and occasional left foot symptoms associated with a right leg discrepancy.
[36] Claimant’s bundle, page 166.
Ms Sear described a left arm injury at the school athletics carnival in early May 2013 and a fall on 25 May 2013 resulting in an avulsion fracture of the left talus and ligament damage. She had difficulty walking, was put in a walking boot and given painkilling medication.
Ms Sear stated that she was otherwise “generally well” prior to the motor accident, was “busy and active”, would walk the dog on a daily basis for at least 2 km and would participate in various fun runs.
Ms Sear stated that she was given permission to drive on 31 May 2013 although she remained on pain-killer medication.
Ms Sear stated that the other vehicle was near the top of the hill, probably about 30 or 40 m in front, had stalled and then began to roll backwards. The truck collided with the front of her car causing substantial damage. She was extremely frightened and worried about the timbers in the truck “Impaling me in my car”.
Ms Sear stated that she first noticed back pain “about five days after the accident” which she thought was due to walking in a boot. Ms Sear stated:[37]
“However the pain became worse. Over the next week or two I found it difficult to do anything. My back pain became worse. I was developing neck pain as well as the back pain. At this time as the result of my fall, my daughters had been providing significant domestic assistance. However, with my back pain worsening I could not do anything.”
[37] Claimant’s bundle, page 170.
Ms Sear said that she advised the foot fracture clinic at Ryde Hospital on 28 June 2014 [sic 2013] of her back pain. By mid-July her back pain was “very severe” and she was admitted to Concord Hospital on 18 July 2014 [sic 2013].
In a further statement dated 24 July 2018[38] Ms Sear said that the 2015 motor accident resulted in a “significant and immediate aggravation of my neck and back pain” which lasted “six or so weeks” until her condition returned to how it was prior to the 2015 motor accident.
[38] Claimant’s bundle, page 171.
Ms Sear first consulted Dr Hsu in 2014. She then sought treatment dealing with her chronic pain and undertook treatment at the ADAPT Pain Clinic and gym and hydrotherapy through Royal Ryde Rehabilitation and exercising at Royal Ryde hydrotherapy pool and at Ryde Eastwood Leagues Club. Subsequent treatment included neurotomies, Botox injections and radio frequency ablations.
Ms Sear said that she was becoming desperate with her neck and back problems and again returned to Dr Hsu who advised that he could reduce the limb symptoms and that it “could provide significant relief of the worst of my symptoms”.[39]
[39] Claimant’s bundle, page 179.
Ms Sear stated that the neck surgery undertaken in October 2016 relieved the numbness and nerve pain and that she has not had a major flare up of pain. She stated that the lumbar surgery undertaken six months later provided relief in that the numbness and tingling ceased, she no longer had flare ups requiring hospitalisation and did not take Lyrica.
Ms Sear completed a claim form dated 2 October 2013. The motor accident was described in the claim form in the following terms:[40]
“I had just turned left out of Sluman St onto Shaftesbury Rd. I started to ascend the steep climb up Shaftesbury Rd very slowly. I noticed a truck at the very top of the hill roll back about 11/2 m and I immediately stopped where I was. I was unnerved by this sight but then it completely lost control and came flying down the hill and smashed into my car. This all happened very quickly. After seeing the car’s first loss of control, I had time to realise that it was impossible for me to overtake (due to downhill traffic). I did look in my rear vision to see if anything was behind me, but then the truck ploughed into me.
The truck was a rust bucket with wood coming out the end with no flag on. I considered myself very lucky to have not been beheaded in the accident. If I had been in a smaller car (I was fortunately in a commodore) I would have definitely have [sic] been killed.
The truck ended up travelling about 25 m in freefall before I stopped its descent. After 11/2 hrs and 2 phone calls to the police, they finally arrived. I explained to the police that I was concerned about the state of their truck and whether it was road worthy. I am very sure their brakes failed.
However the Police seemed unwilling to take the time to do that and said there was no need for them to take it further as he had admitted complete guilt.
PS I have photographs of the accident if required. These also show pieces of wood, a spade etc that the 3 occupants immediately thrust under the wheels of the truck after it had descended the hill. (It appeared as if this was a regular occurrence of that they were very worried (illegible) the truck staying in position).”
[40] Claimant’s bundle, page 139.
Ms Sear described her injuries as a “complete destabilisation of the spine” and referred to the neck and back being injured with referred pain and numbness in legs.
Ms Sear also stated:[41]
“The back pain developed after the accident and gradually got worse until it was unbearable.”
[41] Claimant’s bundle, page 143.
By letter dated 18 December 2013[42] and in response to a request for particulars, the claimant’s lawyers advised that Ms Sear’s vehicle was stationary, was fitted with functional airbags and the vehicle was towed. The photographs of the motor accident do not show the airbags deployed.
[42] Insurer’s bundle, page 283.

Other statement evidence

Ms Susan Schofield is Ms Sear’s aunty and provided a statement dated 31 October 2014.[43] Ms Schofield stated that Ms Sear’s parents were residing with her in the United Kingdom in June 2013. On 11 June 2013 Ms Sear rang and stated that she was in severe pain.
[43] Claimant’s bundle, page 454.
On 13 June 2013 Ms Sear rang again and said that she was still in a lot of pain from her back and neck. On 17 June 2013 Ms Sear rang again and stated that she was taking a higher dose of pain killers and the situation had deteriorated.
Ms Schofield stated that she kept in regular contact with Ms Sear in July and August 2013 and during this time the pain in the back and neck continued to worsen.
Ms Scofield stated that she kept last year’s diary and “can verify the dates mentioned”.
Ms Julie Modra is the claimant’s friend and provided a statement dated 30 October 2014.[44] Ms Modra stated that she remembered the lunch to farewell Ms Browne in July 2013. At that time Ms Sear discussed the accident and said “how much pain she was enduing in her neck, back and ankle”. At that lunch Ms Sear “excused herself early as she was no longer able to sit … because her back and neck were causing her too much discomfort”.
[44] Claimant’s bundle, page 455.
Ms Stephanie Houston is an occupational therapist and a friend and provided a statement dated 3 November 2014.[45] Ms Houston stated that she had dinner with
Ms Sear on 16 June 2013. At that time Ms Sear was wearing an orthopaedic boot.
Ms Houston stated:
“I can clearly recall her talking about experiencing low back and neck pain at the dinner.”
[45] Claimant’s bundle, page 456.
Ms Janye Browne is a friend of Ms Sear and provided a statement dated 4 November 2014.[46] Ms Browne stated that she spoke to Ms Sear on or about 10 June 2013 when the motor accident was discussed, and she mentioned that she had neck and back pain. Over the following weeks discussions over the phone were that “back pain was becoming more chronic” and the “pain was very significant”.
[46] Claimant’s bundle, page 457.
At a lunch held on12 July 2013 celebrating Ms Browne’s farewell to Western Australia, Ms Browne stated that Ms Sear was “in great pain” and due to her discomfort, left the lunch early.
Ms Gabrielle Morgan is a family friend and related by marriage to Ms Sear and provided a statement dated 5 November 2014.[47] Ms Morgan stated that Ms Sear told her on 6 June 2013 that she had a motor accident that day and on 10 June 2013 her back and neck were very sore.
[47] Claimant’s bundle, page 458.
Ms Jacqueline Sear is the claimant’s daughter and provided a statement dated 19 May 2015.[48] She stated that prior to the motor accident the claimant had no real restrictions, was active and worked long hours. She described the previous leg injury involving the claimant spending two weeks at home resting and consuming Panadol, Panadeine Forte and Mersyndol Forte.
[48] Claimant’s bundle, page 459.
Ms Jacqueline Sear received a call following the motor accident and attended the scene. Her evidence of the scene and her mother was as follows:
“I received a call from Mum and she sounded very distressed. I went around the corner. I stayed with her for about thirty minutes following the accident. When
I reached the accident apparently the whole scene was as it was immediately following the crash. The back of the truck which had rolled back into my mother’s car still had the rear of the truck embedded in the front of mum’s car. There were planks of wood behind the back wheels of the truck. There were also some planks sticking out from the back of the tray of the truck.
I noticed Mum was very panicky. She was still in the car. She was very distressed. The police had been called and we waited for them to arrive.”
Ms Jacqueline Sear stated that over the next few weeks, the motor accident “consumed almost all of her conversations with family and friends”.
Ms Jacqueline Sear stated that after a few days rest her mother mentioned “back and neck pain” which they attributed to hobbling around in crutches and a boot. She said that her mother relaxed at home on the recliner taking pain killer medication and consulted her general practitioner, Dr Jan Davis, on a couple of occasions.
Ms Stephanie Sear is the claimant’s daughter and provided an undated statement.[49] She gave evidence about the claimant’s prior good health, social activities and employment. Ms Stephanie Sear describe the prior fall and stated that her mother was then “spending most of her time at home resting taking pain killer medication”.[50]
[49] Claimant’s bundle, page 462.
[50] Claimant’s bundle, page 462.
Ms Stephanie Sear became aware of the motor accident through her sister, Jacqueline. She said that about three or four days after the motor accident her mother was “complaining about having neck and back pain” and the back pain was more significant. Some short time later her mother “was spending a lot of time at home resting her back in bed and choosing to stay at home rather than leaving the house”. At some point her mother complained of arm numbness and a couple of weeks later her sister took her mother to hospital.
On 16 July 2013 her mother was complaining of neck and back pain and went to Concord Hospital. Over the next few months her mother went to hospital “on a number of occasions because the back had become unbearable”.

General practitioners

Dr Jannette Davis[51]

[51] Insurer’s supplementary bundle, page 78.

Dr Davis’ records commence in 1998. The initial notes refer to a fractured right femur at eight years of age resulting in a greater than 1 cm difference in leg length and “back pain in later years”.[52]
[52] Insurer’s supplementary bundle, page 82.
A medical history report completed by Dr Davis dated 23 August 2011 referred to ongoing generalized anxiety/depression and “some back pain”.[53]
[53] Insurer’s bundle, page 147.
The clinical note dated 7 June 2013 refers to the fractured talus following a fall at home.[54] On 6 August 2013 the doctor noted back pain with presentation to “CAS” on 18 July 2013. On 17 August 2013 the lower back is again mentioned with a request for Endone.
[54] Insurer’s supplementary bundle, page 95.

Dr Katherine Frost

Dr Katherine Frost, general practitioner provided a report dated 23 January 2014[55] noting that Ms Sear had been a patient since 22 May 2013. The doctor noted that back pain was first mentioned on 14 August 2013 with a history of back pain for five weeks. The doctor recorded that on 16 October 2013 Ms Sear stated that the back pain commenced two days after the motor accident. On 11 December 2013 the claimant described neck pain and stated that she thought it had been present for three months. At that time the Ms Sear was complaining of migraines.
[55] Claimant’s bundle, page 341.
The first clinical note is dated 22 May 2013 and refers to the fall at the athletics carnival three weeks earlier when Ms Sear injured her left forearm and knee. An ultrasound performed at that time indicated a partial thickness tear of the common extensor digitorum tendon.
The clinical note dated 3 July 2013 referred to a fractured left foot and some left arm weakness. The clinical note dated 14 August 2013 referred to “back pain 5 weeks ago” and that the claimant was admitted to Concord Hospital.
Dr Frost provided a certificate dated 16 October 2013[56] which referred to back pain commencing two days after the motor accident. The certificate does not refer to the cervical spine. The clinical note of that day refers to back pain which commenced two days after the motor accident. There is no mention in the note to cervical spine pain.
[56] Claimant’s bundle, page 340.
Dr Frost noted on 11 December 2013 that Ms Sear complained of neck pain which had been present for three months.
The clinical notes and records refer to a longstanding psychological condition.[57]
[57] See for example, the reports of Dr Ross dated 12 February 1998 – 10 December 20010, Insurer’s supplementary bundle, pages 200 – 221.
A certificate attached to the claim form completed by Dr Frost and dated 16 October 2013 referred to the motor accident on 6 June 2013 and that “back pain started 2 days later. Since then constant”.[58] The doctor’s clinical findings included “back pain”.
[58] Claimant’s bundle, page 147.

Various documents in Dr Frost’ clinical records concern the work injury at the athletics carnival on 2 May 2013 when Ms Sear injured her left elbow. Dr Frost referred
Ms Sear to Dr Hughes who noted on 8 August 2013 that there was a good resolution of left hand and elbow symptoms. There is no suggestion in this material that the back or neck were injured in that accident.

Concord Hospital

The discharge referral from Concord Hospital notes admission on 18 July 2013 with fever and a principal diagnosis of “mechanical back pain”. The records note a “5/7 day history lumbar back pain of sudden onset which she describes as non-radiating and electric in nature” with a denial of any “mechanical trauma”.[59]
[59] Insurer’s supplementary bundle, page 238.
Discitis was considered and excluded by a CT scan. The CT scan is reported by
[60] Insurer’s supplementary bundle, page 241.
Dr Jones as showing minor spondylotic change at L3/4 which resulted in mild neural exit foraminal narrowing bilaterally.[60]
An outpatient report from Concord Hospital dated 1 August 2013[61] noted recent admission for “fevers, rigors and back pain” with back pain improving with analgesia. Ms Sear complained of “dull lower back pain”, worse when sitting and eased with walking or lying down.
[61] Claimant’s bundle, page 346.

Physiotherapist

A report from Samantha Jakelic, physiotherapist dated 6 August 2013[62] referred to presentation to physiotherapy with “a history of low back pain and being unwell over the previous few weeks” with shooting pain in the low back and arms and episodes of numbness in the hands and feet.
[62] Insurer’s supplementary bundle, page 244.
Judy Gardner, occupational therapist, noted in a report dated 16 March 2015[63] that the claimant initially attributed the back pain to walking on crutches with her foot and in a cam boot.[64]
[63] Insurer’s bundle, page 757.
[64] Insurer’s bundle, page 761.

Dr Holford – Royal North Shore Pain Clinic

On 6 November 2013 Dr Rebecca Overton referred Ms Sear to the Royal North Shore Pain Clinic for opinion and management for back pain.[65]
[65] Claimant’s bundle, page 354.
The Pain Clinic replied by letter dated 15 November 2013[66] which noted a history of mild back pain following the motor accident that worsened considerably over the subsequent weeks. Dr Holford opined that the back pain was “most likely discogenic in origin” and possibly from the facet joints for both the neck and lumbar spine.
[66] Claimant’s bundle, page 356.
In April 2014 Dr Holford noted resolution of lumbosacral pain but ongoing midline lumbar pain which he suspected was discogenic. Ongoing neck pain remained an issue.[67]
[67] Claimant’s bundle, page 362.

Associate Professor Cheswick

Ms Sear attended A/Prof Cheswick on 22 August 2013[68] complaining of waist, right buttock and left ankle pain with paraesthesia in the limbs more marked on the right. A/Prof Cheswick recorded a six-week history of lower back pain. He recorded the following:
“Gillian mentions an MVA on 6.6.13 when a truck rolled back into her vehicle however she had no problem with lower back pain until 5-6 weeks later on 13.7.13…. On 15.7.13 Gillian developed right sacral pain, especially when rolling over in bed but also on standing from a sitting position.”
[68] Insurer’s supplementary bundle, page 251.
Associate Professor Cheswick described the CT scan as showing minor spondylotic change at L3/4. Neurological examination was normal. A/Prof Cheswick recommended gentle manual treatment to the thoraco-lumbar junction.

Professor Kannangara

Professor Kannangara examined Ms Sear as part of the rheumatology clinic and provided a report dated 21 October 2013.[69] The Professor then noted a history of the motor accident when the “truck lost control and came down a hill crashing against the car she was driving” and that Ms Sear was “lucky to be alive and lucky not be decapitated”. Ms Sear provided a history of cervical and lumbar pain since the accident.
[69] Insurer’s supplementary bundle, page 256.
The Professor noted a long history of depression, ongoing back pain with paraesthesia which did not correspond to any dermatomal pattern and opined the following:
“I do not believe Jillian’s symptoms are all organic as the MRI shows very little, for a 50 year old. There is one level disc dehydration and slight bulges but there are no prolapses and no canal stenosis. At that one level she could have some facet joint issues which I do not think is of any great importance. She does not have a surgical lesion. I believe most of her symptoms are functional rather than organic…. With the cloud of depression and cloud of litigation due to this motor vehicle accident, overall management is going to be difficult.”

Qualified opinions

Dr Harvey, orthopaedic surgeon was qualified by the insurer and provided a report dated 5 February 2014.[70] The doctor recorded a history of the “tiniest little pain” developing in the low back two days after the motor accident and neck pain developing three weeks later. He observed a normal neurological examination with tenderness about the 4^th lumbar vertebra and the lumbosacral junction. Tenderness was also noted from the first cervical vertebra to the level of the fifth.
[70] Insurer’s supplementary bundle, page 264.
Dr Harvey opined that he did not consider it credible “that a person could suffer a significant physical spinal injury in the car accident and there to be such a delay in onset of symptoms”.[71] The doctor opined that there was no “objective evidence” that there was a significant physical spinal injury in the motor accident that would permanently affect the claimant’s earning capacity. He opined that the ongoing symptoms could not be explained on a physical basis.
[71] Insurer’s supplementary bundle, page 271.
Dr Alex Ganora was qualified by the claimant and provided a report dated 6 June 2014.[72] The doctor recorded a history of Ms Sear first noticing back pain five days after the motor accident which progressively worsened and assumed to be related to the way she was walking due to the ankle injury. Neck pain commenced at some point with numbness in both hands.
[72] Claimant’s bundle, page 186.
Dr Ganora diagnosed intervertebral joint sprains to the mid to lower lumbar spine and the lower cervical joints. He opined that it was possible that the persistence of the symptoms was at least partly due to preinjury sensitisation and predisposition towards chronicity by virtue of pre-existing depression, and “perhaps more significantly, the pre-existence of post-traumatic stress reactions which have been the subject of ongoing treatment prior to the motor vehicle accident”.[73]
[73] Claimant’s bundle, page 192.
In a further report dated 12 March 2015[74], Dr Ganora noted that the lumbar discography demonstrated a contained L3/4 right posterolateral annular tear which was painfully sensitive on needle entry but intradiscal injection was painless. The doctor opined that the clinical picture was now indicative of a lumbar intervertebral injury with recent lumbar discography consistent with injury to the L3/4 disc. Dr Ganora expressed “no doubt” that the back pain is due to lumbar disc injury caused by the motor accident resulting in “chronic persistent disabling low back pain”.
[74] Claimant’s bundle, page 195.
Dr Ganora considered it likely that the cervical spine was injured in the motor accident noting the pre-existing cervical spondylosis although opined that “cannot be stated with probability that the intervertebral disc changes on the MRI are consequent to the motor vehicle accident”.[75]
[75] Claimant’s bundle, page 200.
The doctor considered the chronic pain and post-traumatic stress order as causing an unfitness for employment.
Dr James Bodel, orthopaedic surgeon was qualified by the claimant and provided a report dated 14 July 2014.[76] The doctor also noted a history of low back pain developing five days after the motor accident which progressively increased “over time”.
[76] Claimant’s bundle, page 205.
The doctor also recorded a history of neck and arm symptoms developing at some point in time. Dr Bodel diagnosed a soft tissue injury to the back and neck and agreed with the recommendation of referral to the ADAPT program and ongoing supervision under Dr Holford.
Dr Bodel provided a further report dated 20 February 2018.[77] The doctor noted that
[77] Claimant’s bundle, page 211.
Ms Sear had less neck pain 18 months after surgery and “less nerve pain in the arms but the symptoms still persist” and otherwise recorded that back pain had also improved following surgery.
Dr Bodel opined that a delay of onset of pain of five days was “not significant in the determination of causation”.[78] He opined that the motor accident was aggravated disc disease in the cervical and lumbar spines which led to the major surgical procedures. He also opined that the 2015 motor accident was “minor” and did not contribute to the overall level of impairment.[79]
[78] Claimant’s bundle, page 219.
[79] We have read the ultimate sentence in the report as missing a negative given the balance of the sentence and other portions of the report describing the 2015 motor accident as “very minor” and that the neck and back pain were only aggravated for “a few weeks”.
Dr Gertler provided a report dated 9 December 2014[80] diagnosing symptoms of post-traumatic stress disorder and associated depression. The doctor confirmed these diagnoses in a subsequent report.
[80] Claimant’s bundle, page 220.
The occupational therapy report dated 3 March 2015 recorded a history of back pain developing five days after the accident. It is unclear from the report when the neck pain developed. [81]
[81] Claimant’s bundle, page 247.
Dr Ron Muratore, sports physician, was qualified by the insurer and provided a report dated 20 June 2016.[82] The doctor noted a history of the development of gradual onset of low back pain after five days which intensified over time and was reported to the fracture clinic. Neck pain developed over the “ensuing days”.
[82] Claimant’s bundle, page 306.
The doctor recorded a history that the 2015 motor accident caused a flare up of neck pain which lasted until December 2015.[83] That history was also recorded by the doctor in his second report.[84]
[83] Claimant’s bundle, page 311.
[84] Claimant’s bundle, page 325.
Dr Muratore diagnosed soft tissue injury to the neck and back causally related to the motor accident complicated by a chronic pain syndrome.[85] He accepted that the claimant had intervertebral disc pathology which was pre-existing and that the motor accident has led to a chronic pain syndrome.
[85] Claimant’s bundle, page 315.
Dr Muratore provided a further report dated 31 July 2019.[86] He then noted the surgical procedures which had improved but not totally relieved symptomatology. The doctor diagnosed soft tissue injuries of the neck and lumbar spine with possible aggravation of pre-existing degenerative changes caused by the motor accident.
[86] Claimant’s bundle, page 322.
The 2015 motor accident was described by the doctor as “minor” and did not lead to any aggravation of degenerative changes.[87]
[87] Claimant’s bundle, page 330.
Dr Muratore opined that the surgical procedures were performed “as a consequence of injuries sustained in the subject motor vehicle accident”.[88] He opined that the current presentation was totally due to the motor accident.
[88] Claimant’s bundle, page 331.
Mr Michael Coroneos was qualified by the insurer and provided a report dated 23 March 2017.[89] After a detailed resuscitation of the radiological evidence, the doctor commented that none of the changes were traumatic and only showed minor age appropriate cervical and lumbar spondylosis.
[89] Insurer’s bundle, page 161.
The doctor opined that he could not identify any significant neurosurgical injury or spinal injury occurring as a consequence of either the motor accident or the 2015 motor accident.[90] He opined that the cervical spine surgery was “inappropriate, unnecessary and not treating any injury changes” and that the proposed lumbar spine surgery was contraindicated.
[90] Insurer’s bundle, page 183.
Dr Coroneous attached various articles. Some of which established the prevalence of degenerative spinal changes in the population particularly increasing after 50 years of age.[91] Reference was also made to articles concerning the management of whiplash injuries.
[91] Insurer’s bundle, pages 209, 214.
Dr Coroneous provided a supplementary report dated 11 February 2020[92] which commented on the opinions expressed by Dr McIntosh and Medical Assessor Kenna. The doctor then attacked the Medical Assessor’s qualifications and unhelpfully (although said to be with “all due respect”) described the original medical assessment as of “no probative value, incomplete, contradictory, inaccurate, replete with errors and inconsistencies” and in his opinion, invalid.[93]
[92] Insurer’s bundle, page 413.
[93] Insurer’s bundle, page 416.
Dr John Davis was qualified by the claimant and provided a report dated 4 July 2018.[94] Dr Davis recorded a history that back pain developed a couple of days after the motor accident which slowly increased in intensity. He concluded that the injury to the lumbar spine was consistent with the motor accident.
[94] Claimant’s bundle, page 230.

ADAPT Program

The claimant underwent the ADAPT program at Royal North Shore. The discharge summary report noted that Ms Sear had made important gains although had “work to do” with low confidence.[95] A six month follow up report recommended ongoing use of ADAPT strategies to manage pain.[96]
[95] Claimant’s bundle. page 382.
[96] Claimant’s bundle, page 388.

Professor Con Yiannikas

Professor Con Yiannikas provided a series of neurotoxin injections into the cervical spine. In a report dated 10 November 2014[97] the Professor diagnosed a stetch injury of the plexus causing right arm pain leading to abnormal neck posturing and possibly secondary regional dystonia.
[97] Claimant’s bundle, page 402.

Dr Brian Hsu

Ms Sear first consulted Dr Hsu on 9 April 2014.[98] The doctor noted the bone scan demonstrated no significant increased uptake, the MRI scan of the neck demonstrated mild to moderate bulging at C6-7 and C4-5 and the MRI scan of the lumbar spine showed slight facet synovitis and moderate disc bugling at L2/3 and L3/4. Dr Hsu recommended cervical spine facet joint injections.
[98] Claimant’s bundle, page 417.
Dr Hsu reviewed Ms Sear on 8 September 2014.[99] The doctor noted nerve conduction studies showed no peripheral nerve involvement. Symptoms at that time were more significant in the lumbar spine. The doctor encouraged Ms Sear to continue with treatment under Dr Holford.
[99] Claimant’s bundle, page 420.
Dr Hsu reviewed Ms Sear on 4 December 2014.[100] At that time Dr Hsu did not believe that surgery would help “some of her symptoms”. The doctor recommended further consultation once Ms Sear had recovered from an unrelated knee injury.
[100] Claimant’s bundle, page 421.
Ms Sear was reviewed by Dr Hsu on 4 August 2016.[101] He noted that the symptoms had become worse. The relevant history was that Ms Sear had undergone numerous therapies and opined that the stage had been reached where surgical intervention should be considered.
[101] Claimant’s bundle, page 422.
On 12 August 2016 Dr Hsu noted the recent MRI scan reported significant C4 to C7 pathology with C3/4 spondylisthesis. The doctor recommended an anterior C4-C7 decompression and fusion followed by a C3-C7 posterior stabilisation and fusion.
On 6 December 2016 Dr Hsu reported that Ms Sear had progressed well following cervical surgery with resolution of upper limb symptoms and numbness. The doctor noted that Ms Sear was keen to undergo surgical treatment for the lumbar spine noting the main problem was L4/5 and L5/S1 disc pathology along with facet pathology.
Dr Hsu reported on 24 January 2017 that Ms Sear had “done very well from her cervical spine fusion” and the headaches and neck pain had “largely resolved”.[102]
[102] Claimant’s bundle, page 425.
Ms Sear had reported increasing lumbar back pain and leg pain and the doctor noted that the recent MRI scan had demonstrated “significant intervertebral disc pathology”. The doctor then recommended lumbar spine surgery by way of anterior and posterior spinal fusion.
On 10 April 2017, Ms Sear underwent stage 2 of the L3-S1 decompression and interbody fusion.[103]
[103] Claimant’s bundle, page 428.
In a report dated 5 June 2017, six weeks after the L3 to S1 decompression and fusion, Dr Hsu noted “an excellent recovery so far” with decreased back and leg pain.[104]
[104] Claimant’s bundle, page 430.
On review in August 2017 Dr Hsu noted “tremendous improvement in her neck pain and back pain after the surgeries” and the doctor expected further improvement over time. [105]
[105] Claimant’s bundle, page 432.
In a report dated 13 February 2018 Dr Hsu noted a poor prognosis due to the lack of response and long period of non-operative treatment. The doctor noted that
[106] Claimant’s bundle, page 433.
Dr Coroneos’ opinion of post-operative outcome scores noted an improvement of 25-30% at only 3-6 months post-surgery. Dr Hsu stated that “this clearly indicates that the surgery had provided her improvement in her disability in spite of Dr Coroneos’ opinion that surgery is unnecessary”.[106]

Dr Davor Saravanja

In 2016 Dr Davor Saravanja recommended cortisone injections which resulted in only short-term improvement.[107]
[107] Claimant’s bundle, pages 435 – 438.

Radiology

A CT scan dated 20 December 2010 reported by Dr Graeme Goldin is reported as showing the left leg 13 mm shorter than the right leg.[108]
[108] Insurer’s supplementary bundle, page 236.
The lumbar spine CT scan dated 18 July 2013 reported minor spondylotic change at L3/4 with associated mild neural exit foraminal narrowing.[109]
[109] Claimant’s bundle, page 344.
An MRI scan of the lumbar spine dated 3 September 2013 noted a history of six weeks of recurrent pain with no sciatica. Dr Steinberg noted the L3/4 disc was mildly thinned and dehydrated.[110]
[110] Claimant’s bundle, page 350.
A bone scan dated 27 November 2013 showed no evidence of cervical or lumbar facet arthroplasty.[111]
[111] Claimant’s bundle, page 373.
A lumbar discogram dated 9 December 2014 is reported as showing the L3/4 annulus as painfully sensitive on needle entry but intradiscal injection was painless with less severe pain at L4/5.[112]
[112] Claimant’s bundle, page 199.
A bone scan dated 22 December 2014 noted mildly increased uptake on the left C3/4 facet joint and both L4/5 facet joints which were not present on the previous bone scan of 27 November 2013.[113]
[113] Insurer’s supplementary bundle, page 276.
An MRI scan of the lumbar spine dated 23 December 2014 is reported as showing focal disc desiccation at L3/4 with associated disc bulge and mild to moderate degenerative changes at L4/5.[114]
[114] Claimant’s bundle, page 398.
An MRI scan of the cervical spine dated 24 July 2015 showed degenerative changes and minor disc protrusion from C4/5 to C6/7 with no relevant nerve root impingement.[115]
[115] Claimant’s bundle, page 445.
Nerve conduction studies dated 28 August 2015 showed evidence of mild median nerve dysfunction at the wrists, consistent with lesions at the carpal tunnels. The studies did not show evidence of an ulnar neuropathy.[116]
[116] Claimant’s bundle, page 447.
A lumbar spine MRI scan dated 16 January 2016 revealed disc desiccation at L3/4 with associated disc bulge and mild joint osteoarthrosis from L3/4 to L5/S1.[117]
[117] Claimant’s bundle, page 413.
A cervical spine MRI scan dated 22 January 2016 is reported as showing severe right foraminal stenosis at C4/5 and moderate on the left and left foraminal stenosis at C3/4.[118]
[118] Claimant’s bundle, page 400.
A cervical spine x-ray dated 28 October 2016 confirmed the posterior pedicle screws from C3 to T1.[119]
[119] Claimant’s bundle, page 238.
A lumbar spine x-ray dated 31 May 2017 confirmed the presence of metallic bars and pedicle screws fusing the L3/4, l4/5 and L5/S1 levels.[120]
[120] Claimant’s bundle, page 239.

Documents relating to the motor accident

Various photographs show damage to the claimant’s vehicle. The photographs show impact to the various points on the front of the car including the bonnet, front light covers and bumper bar.[121] One photograph appears to show the position of the vehicles in the motor accident.[122]
[121] Insurer’s bundle, pages 246 – 250.
[122] Insurer’s documents, pages 257, 260.
Mr Theise, the insured driver, provided a statement dated 22 November 2013.[123] He stated that he was driving up a very steep hill on Shaftesbury Road, about half-way to three-quarters up, when he was changing the gears from second to first. He stated that his foot slipped and the “truck has rolled backwards, and I don’t know how far, maybe a couple of feet” and felt an impact at the back.
[123] Insurer’s documents, page 267.
Mr Theise notice damage to the bonnet of Ms Sear’s bonnet, did not see any broken lights and did not see damage to the bumper bar. Mr Theise stated that the police arrived after 10 – 15 minutes and both he and Ms Sear spoke to the officer although “he did not make a statement and … did not sign any notebook”.
Mr Yenihayat was a passenger in Mr Theise’s vehicle and provided a statement dated 26 November 2013.[124]
[124] Insurer’s documents, page 273.
Mr Yenihayat stated that the vehicle “go to the top and stop”, Mr Theise’s “slip off the pedal” and the vehicle rolled back “just a metre or two”. Later in his statement
Mr Yenihayat stated the truck rolled back “2-3 metre, no more than that”. He said that the police took around 45 – 60 minutes and spoke to Ms Sear who was alone.
Senior Constable Ali attended the accident and provided a statement on 29 November 2013 to the insurer’s investigator.[125] Relevantly the officer stated that he received a call at 9.13 am and attended at 10.07am. He did not take any notes, but the insured driver told him that he was cruising up the hill in a low gear and was forced to stop to change back a gear when his foot slipped and the truck rolled back a short distance into the other car.
[125] Insurer’s documents, page 276.
The police officer checked if everyone was okay. Ms Sear may have said that she had some soreness. The officer stated:
“I did not do any calculations or measurements as to how far the tipper truck rolled back, and based on the extent of the damage to the commodore, I would say it had not rolled back more than 5.0 metres.”

Dr Andrew McIntosh

Dr Andrew McIntosh was qualified by the insurer and provided a report dated 25 November 2019.[126]
[126] See Insurer’s bundle, page 341.
After reviewing various materials, Dr McIntosh opined that the likely change in velocity of the collision was within or less than the range of 15 and 20 km per hour based on the absence of frontal airbags deploying, the damage to Ms Sear’s vehicle and the potential speed of the insured’s vehicle.[127]
[127] Insurer’s bundle, page 372.
Dr McIntosh opined that at the upper end of the range of change in velocity in the motor accident between 15 and 20 km per hour, it was plausible that the forces caused soft tissue injuries and neck and/or symptomatic aggravation of pre-existing neck and lower back conditions. The doctor then stated, without reference to any basis for the opinion that the “symptomatic aggravation would have been of a closed period of short duration”.[128] Later in his reasons, Dr McIntosh opined that intervertebral disc injuries were unlikely in the estimate crash severity range for a belt restrained driver and could result in no injury.
[128] Insurer’s bundle, page 387.
Noting the histories of onset of symptoms recorded by Dr Harvey, the forces involved in the motor accident are not consistent with injuries to the neck and back.[129]
[129] Insurer’s bundle, page 387
Dr McIntosh noted that a pre-existing injury is a risk factor in injury likelihood and symptom presentation.[130]
[130] Insurer’s bundle, page 387.
Dr McIntosh noted that Ms Sear fell twice prior to the motor accident and back and neck soft tissue injuries were possible outcomes after a fall.[131] Further, altered gait mechanics caused by the use of crutches had the potential to cause both low back and neck pain dependent upon the claimant’s exposure. With greater exposure there was a greater likelihood of symptom development.[132]
[131] Insurer’s bundle, page 388.
[132] Insurer’s bundle, pages 388-389.

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[133] that there was error. 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.

[133] Or the relevant predecessor.

Claimant’s submissions dated 24 July 2018

The claimant submitted that the motor accident aggravated pre-existing degenerative changes which would not be apparent on a scan. This was the opinion expressed by
Dr Bodel. Other doctors supported the causal nexus of the injuries such as Dr Ganora and Dr Muratore.
Reference was made to a number of lay statements which supported the claimant’s contemporaneous reporting of complaints.

Claimant’s submissions dated 8 May 2019

These submissions were filed opposing the insurer’s application seeking to review the first assessment determined by the Medical Assessor.
The claimant noted that Medical Assessor Kenna was qualified and had completed the relevant module training. The insurer should have raised issues about the Medical Assessor’s qualifications prior to, not after the original assessment.
The claimant submitted that there was no internal inconsistency in the Medical Assessor’s findings concerning the 2015 motor accident which was that it caused a short-term flare up.
The claimant noted that the insurer’s suggestion of “significant” spinal injury arises from the opinion of Dr Coroneous and that there is no requirement under the MAC Act that there be significant physical injury.
The delay in back pain was only days and worsened in conjunction with the reduction in pain medication. Further, the onset of neck and back symptoms is supported by the various witness statements, and it is clear “that there is no real delay in the onset of symptoms”.[134] In that regard Dr Harvey does not have the benefit of the witness statements.
[134] Claimant’s bundle, page 83.
The insurer’s other explanations for the onset of symptoms such as the use of crutches are possibilities and ignores the claimant’s evidence.
The claimant pursued a conservative approach consistent with the opinions of
Dr Holford and Professor Yiannikas which did not provide relief. It was only as a result of surgery that Ms Sear obtained significant improvement. The Medical Guidelines are not an indicator of whether the treatment is reasonable and necessary. Furthermore, postulating that there are alternate types of treatment in accordance with studies and general discussion is irrelevant in a particular case.
The insurer’s submission that there was no significant improvement, is by definition, a submission by the insurer that the claimant is lying.
The views of other doctors, such as Professor Kannangara were provided in 2013 and are not really relevant to the decision to operate made in 2016.

Claimant’s submissions dated 22 June 2020

The claimant referred to the extensive non-operative treatment undertaken prior to
Dr Hsu recommending surgical intervention.
It was noted that Dr Muratore re-examined the claimant in July 2019 and assessed permanent impairment at 41%. The claimant submitted that the insurer has “completely ignored” that opinion in their submissions.[135]
[135] Claimant’s bundle, page 8.
The claimant submitted that Dr Coroneous did not conduct a further examination and his further report simply “criticises the decision of Assessor Kenna”.[136]
[136] Claimant’s bundle, page 15.
The claimant confirmed that it was her position that the motor accident caused soft tissue injuries which resulted in an aggravation of underlying and previously asymptomatic degenerative process in the lower back and neck, which has continued and worsened over time.[137]
[137] Claimant’s bundle, page 18.
The claimant submitted that the opinion of Dr McIntosh contained “speculation and guess work” and “would not be admissible in any competent Court”.[138] The claimant noted that Dr McIntosh had not visited the scene and not determined the slope of the Shaftsbury Road. She also noted the inconsistent versions between the respective drivers and the insured’s passenger.
[138] Claimant’s bundle, page 19.
It was submitted that there was considerable damage to the claimant’s motor vehicle which was not a minor bump as you would expect from a truck rolling back a few metres. An Assessor cannot determine the factual dispute between the parties as to how far the truck rolled back.
The claimant noted that the insurer asserted that she had a long history of back pain relying on Dr Davis’ report dated 19 August 2011. The note on page 2 of that report is “some back pain” and there is no evidence of ongoing treatment or problems after that report was written. The other matters the insurer relies upon as being the cause of neck and back pain are “no more than observations and speculation”.[139]
[139] Claimant’s bundle, page 25.

Claimant’s submissions dated 11 December 2020

The claimant submitted that if there was “medical malpractice” by Dr Hsu then the treatment would be “unreasonable and unnecessary”.[140] However, if the surgical treatment was caused by the motor accident, despite not satisfying the reasonable and necessary test, then the claimant is successful in establishing the injuries are greater than 10% permanent impairment.
[140] Claimant’s bundle, page 34.
The claimant asked the Medical Assessor to address the insurer’s contentions about the claimant’s previous complaints of pain, the two falls prior to the motor accident, the insurer’s contention that these falls, and the use of crutches led to complaints of pain and ultimately to surgical treatment to the neck and back, that there was no immediate medical treatment post-accident, Dr McIntosh’s opinion about likely speeds and
Dr Coroneous’ opinion about causation and the need for treatment.
The claimant then submitted the following arguments must be addressed in support of her case:[141]
“(i) That the claimant's childhood leg length discrepancy has never caused significant or assessable impairment. The claimant is very clearly submitting that there is no assessable pre-existing impairment in terms of WPI.
(ii) That prior to the subject accident, no one had ever suggested that the claimant was in need of spinal surgery in the cervical or lumbar regions.
(iii) That there are no reports arising out of either fall in May 2013 of injury to the cervical or lumbar spine.
(iv) That at the time of the accident, the claimant was recovering from a significant injury to her left ankle and was utilising strong prescription pain medication (Panadeine Forte) that potentially masked the immediate consequences of the subject accident. This is proffered as explanation for the absence of complaint about neck or back pain on the day of the accident and immediately following the accident.
(v) That there is significant lay witness evidence of the claimant making complaints of neck and back pain in the days following the accident (see the statements of Jayne Brown of 4 November 2014, Stephanie Houston of 3 November 2014, Gabrielle Morgan of 5 November 2014, Susan Schofields of 31 June 2014 and Julie Modra of 30 October 2014 [R15-R19 to the Reply for Further Assessment].
(vi) That the claimant did not rush to spinal surgery, but rather pursued significant non-surgical options, including medication, physiotherapy, injections and an Adapt program before ultimately accepting Dr. Hsu's recommendations for spinal surgery.
(vii) That Dr. Muratore has provided multiple reports for NRMA, the most recent of which is dated 31 July 2019, in which Dr. Muratore accepts that the accident has caused or contributed to the need for spinal surgery and that there is a 41% assessable WPI.
(viii) That the claimant objects (in the strongest possible terms) to the admissibility of the report of Dr. McIntosh and his flawed conclusions in relation to the circumstances of accident and the consequences of the accident. The claimant's rebuttal of Dr. McIntosh's conclusions need to be addressed if the MAS assessor elects to place any weight on Dr. McIntosh's opinion.”
[141] Claimant’s bundle, pages 38 - 39.
The claimant otherwise submitted that it was doubtful that the medical assessors had expertise in matching photographs of accident damage to injury. It also submitted that the opinion of Dr McIntosh was not definitive and binding and invited the medical assessor to “judge Ms Sear as an individual and not as a statistical probability or probability”.[142]
[142] Claimant’s bundle, page 44.

Claimant’s submissions dated 27 September 2021

In its submissions on the review application the claimant conceded that the Medical Assessor was not provided with a copy of the Insurer’s submissions dated 28 May 2021.
The claimant emphasised the factual issues and submissions from their previous submission which required addressing.

Claimant’s letter dated 17 December 2021

These submissions are addressed in our Reasons.

Insurer’s submissions dated 7 June 2018[143]

[143] Insurer’s bundle, page 499.

The insurer referred to the minor nature of both the motor accident and the 2015 motor accident and submitted that there was no clinical rationale for radical fusions in either the cervical or lumbar spine. The five-week delay in reporting symptoms in the cervical spine “calls causation in relation to the subject accidents into question”.

Insurer’s submissions dated 28 March 2019[144]

[144] Insurer’s bundle, page 1.

These submissions were filed seeking a review of Medical Assessor Kenna’s appointment as a “fundamental error” because his speciality was listed as “musculoskeletal medicine”. His lack of qualifications is evidenced by commenting on the effectiveness of Botox injections which is inconsistent with SIRA guidelines, confirming that yearly nerve ablation procedures allow Ms Sear to be well maintained despite the entire spine “being effectively fused, decompressed and immobile”,[145] and incorrectly considering rotation in the lumbar spine.
[145] Insurer’s bundle, page 2.
Like other submissions, they do not directly impact on our function as we are providing a new assessment and not determining and correcting error by the Medical Assessor.
We observe that the insurer attacked Medical Assessor Kenna’s qualifications after he provided an assessment adverse to the insurer. This submission is without merit.
The Medical Assessor failed to assess permanent impairment of the 2015 motor accident and provided an internal contradiction for the conclusion that this accident was only a minor aggravation.
We do not accept that there is any merit in this submission. The Medical Assessor found that the 2015 motor accident only involved a temporary aggravation of Ms Sear’s condition which resolved.
The assessment of the examination was incomplete as the T1 vertebrae was fused and there was no examination of the thoracic spine for possible dysmetria or residual signs in accordance with the principles in Nguyen v Motor Accidents Authority of NSW.[146] As the claimant noted, this submission, if correct, would only serve to increase the level of impairment.
[146] [2011] NSWSC 351.
The Medical Assessor accepted that the claimant’s symptoms were aggravated with arm elevation which was inconsistent with medical literature.[147]
[147] Referring to Annexure A5.
The Medical Assessor does not explain or give proper consideration in making a finding of significant physical injury when there was a delay in onset of symptoms and “particularly noting the property damage photos”.[148]
[148] Referring to MAS 1A – Annexure A3.
The Medical Assessor failed to refer to the medical opinion expressed by Dr Harvey in the report dated 5 February 2014.
The claimant fell on 25 May 2013 when she landed on her buttocks and fractured the talus and was treated with a splitting boot and crutches. It was submitted:[149]
“The claimant was using both assistive devices at the time of the subject accident for a period of about 6 weeks in total which are a more plausible explanation for delayed onset and progressive worsening of the spinal complaints than any acute soft tissue injury incurred in the 2013 accident.”
[149] Insurer’s bundle, page 4.
The Medical Assessor did not discuss Dr Coroneous opinion that he could not identify any significant neurological or spinal injury. In particular, Dr Coroneous opined that the radiology showed no traumatic changes to either the cervical or lumbar spine.
There was no explanation by the Medical Assessor why the surgery was “required to be performed”. Dr Coroneous was a “senior neurosurgeon” who “provided a detailed clinical rationale” supported by textbook references and should have been the subject of comment as to why the views were rejected.
Two other neurological experts, Dr Halford and Professor Yiannikas recommended a conservative approach. Dr Halford had strongly recommended an ADAPT course for pain management and Dr Bodel agreed with this approach. Dr Ganora confirmed in 2014 that there were no objective signs of nerve root involvement.
The insurer referred to peer literature that where spinal fusion provided only short-term improvement and that there were no significant differences between surgery and conservative treatment. Furthermore, there was no “objective evidence” that the surgery has been of benefit to the claimant.
The Medical Assessor failed to consider “biopsychosocial issues” which are shown through mal-adaptive coping behaviours, non-organic signs, functional impairment, low general health and the presence of psychiatric co-morbidities. The Queensland WorkCover spinal surgery guidelines highlight a number of contraindications to the proposed surgery including active Psychosis/depression. Professor Kannangara was of the view that the symptoms were not organic. Dr Selwyn-Smith was of the opinion that the claimant had a longstanding history of depressions and diagnosed a chronic pain disorder.
The clinical notes of Dr Davis show “a long history of back pain” and a long history of psychiatric depression.
The claimant was strongly encouraged to reduce opioid medication. This appears in the opinions of Dr Harvey and Dr Holford.
The claimant advised Ms Gardner that she initially attributed the onset of back pain to walking on crutches. Any altered gait from the CAM boot gave “further weight” to the view that the claimant was uninjured in the motor accident.

Insurer’s submissions dated 19 May 2020

These submissions sought referral to a Medical Assessor based on additional relevant information in the form of an opinion from Dr Andrew McIntosh. It was submitted that this opinion was “clear and objective evidence of the magnitude of the forces involved in the 2013 collision” and that, consistent with this opinion, the motor accident was insufficient to cause “injuries and symptoms requiring a cervical or lumbar fusion”. [150]
[150] Insurer’s bundle, page 19.
The insurer submitted that there were “a number of factors at play” around the motor accident including falls in the weeks prior to the motor accident, the leg length discrepancy, the pre-existing degenerative changes and the effect of wearing a moon boot whilst mobilising with crutches.
The insurer otherwise referred to the report of Dr Coroneous dated 11 February 2020 which identified “flaws in Assessor Kenna’s analysis”.

Insurer’s submissions dated 8 September 2020[151]

[151] Insurer’s bundle, page 61.

These submissions sought referral to a MAS Assessor for a further assessment of the treatment dispute noting that the insurer disputed that the surgical procedures were causally relayed to the motor accident or the 2015 motor accident and disputing that the procedures were reasonable and necessary. The applications were made based on the additional relevant information provided by Dr McIntosh.[152]
[152] Insurer’s bundle, page 62.

Reasonable and necessary in the circumstances

Ms Sear 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[202], Grove J stated:[203]
“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.”
[202] [2003] NSWCA 52 (Clampett).
[203] 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.[204]
[204] 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.[205] 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.
[205] 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:[206]
“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.”
[206] 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”. In their respective lengthy written submissions, neither party referred to any relevant Superior Court authority on the meaning “reasonable and necessary in the circumstances”. We could not find any authority noting those words have appeared in motor accident legislation for over 20 years.
A rejection that the surgery was “reasonable and necessary” is not the same, as the claimant submitted, to the proposition that the treatment involved “medical malpractice”. No authority was cited by the claimant in support of that submission. More importantly, there is a wide difference between surgery that it was reasonable and necessary, or a non-satisfaction that it was reasonable and necessary, and a view that the treatment was medical malpractice. Numerous examples can be found for this proposition which are otherwise fact sensitive because the determination of the issue will always involve the individual circumstances of the person. We agree with the insurer’s submission that a finding that the surgery is not reasonable and necessary is not synonymous with a finding of medical malpractice.[207]
[207] Insurer’s bundle, page 26 [7].
We otherwise note that doctors will assert that the treatment is not “reasonable and necessary” and not provide any reasons. Dr Muratore did this in the present case and Dr Coroneous did to a lesser extent. Two matters arise from this observation. The first is that medical opinion is just that in circumstances where the qualified doctor has not treated the person and may be providing an opinion after the treatment has been provided.[208] Secondly, the opinion has little value unless the doctor explains his or her opinion.
[208] We appreciate that Dr Coroneous examined Ms Sear and provided an opinion prior to the lumbar spine surgery.
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.
We finally add that 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.
Many of the considerations relevant to the determination of this issue for the neck and back surgeries involve common facts. It is clear from the evidence that Ms Sear suffered from chronic pain following the motor accident. Her evidence to the Panel was that she was at an end and conservative treatment had not been successful. The fact that Ms Sear sold her house and moved into a unit to fund the treatment is confirmatory of her desperation.
There is no doubt that Ms Sear suffers from degeneration in her spine. The surgical procedures undertaken, whilst extensive, are both appropriate, and in our view, accepted medical procedures.
The procedures are obviously expensive although the costs were not quantified. The fact that Ms Sear sold her house and moved into a unit tends to show that, although the cost was not precisely quantified.
The pathology and complaints support the medical proposition that this surgical procedures to the back and neck were reasonable and necessary. The procedure was a recognised medical procedure treating this type of degenerative pathology. We also acknowledge and take into account the opinion of the treating surgeon.
Although the neck and back surgical procedures must be considered differently, there are common themes with respect to why they are both considered reasonable and necessary. The evidence from Ms Sear to the Panel and her continuous and severe complaints establish that she was in severe pain. Whilst there are factors which tendered to suggest that the extensive surgical procedures were not reasonable and necessary, in the circumstances of the claimant we are prepared to accept, given the extensive nature of the chronic pain, that they were.
We accept the insurer’s submission that the claimant’s longstanding depressive condition was a contra-indication to the surgery. However, we also agree with the claimant’s submission that despite Ms Sear’s longstanding depression, she was in full time employment teaching High School mathematics, functioning independently and leading a relatively active life.
Furthermore, Ms Sear reported a positive outcome in late 2016 following the cervical surgery[209] which was a positive indicator that the underlying depressive condition would not prohibit a similar positive outcome for the proposed lumbar surgery. In that regard Dr Hsu noted in December 2016 an “excellent result in resolving her upper limb symptoms and numbness”. A positive outcome from the cervical spine surgery is a factor which supports a positive mental approach and greater likelihood of success for the then proposed lumbar spine surgery.
[209] Claimant’s bundle, page 424.
The insurer submitted that there was no “objective” evidence of improvement, supposedly a suggestion that Ms Sear’s evidence that there was improvement should not be accepted. It is otherwise unclear what the insurer meant by “objective” evidence as it used the same word to described Dr McIntosh’s opinion.
There is no principal of law that there must be “objective” evidence nor that the claimant’s evidence be corroborated. However, Ms Sear gave other explanations why there was improvement following surgery which can be independently verified including that she no longer attends hospital as her flare-ups had ceased and she has ceased taking Lyrica.
Ms Sear informed the Panel that she had improved following the surgical procedures. These details are set out elsewhere. Her statement to the Panel of improvement is consistent with various accounts provided to other doctors following these procedures. We accept Ms Sear’s evidence of her improvement following the surgical procedures.
The record of the improvement is clearly set out in the reasons of the Medical Assessor in his further assessment which are consistent with our conclusion.
In support of his opposing view, Dr Coroneos stated that outcome “speaks for itself”.[210] Our view of the outcome from both surgical procedures is substantial better than that recorded by Dr Coroneous.
[210] Insurer’s bundle, page 415.
Dr Coroneous referred to various articles as supporting his conclusions. One such document was the Guidelines for the management of acute whiplash-associated disorders for health professionals.[211] Relevantly that document provided that “each person’s experience of recovery is different, and the natural course of the condition can go beyond the acute phrase addressed here”.[212] It is simply incorrect to suggest that this document provides a standard that must be adhered to and or determinative of whiplash disorders.
[211] Insurer’s bundle, page 438.
[212] Insurer’s bundle, page 442.
Another document referred to a four year follow up of surgical versus non-surgical therapy for chronic low back pain and concluded that long term improvement was no better after instrumented transpedicular fusion compared with cognitive intervention and exercises.[213] Accepting the validity of that study, it does not mean that the surgery should not be undertaken or indeed that it was not reasonable and necessary for persons having chronic pain.
[213] Insurer’s bundle, page 506.
The insurer referenced other medical opinions that surgery is not undertaken although failed to engage with the date when those opinions were provided. For example, reference was made to Dr Bodel’s opinion in July 2014 that the claimant should pursue a conservative approach such as participating in the ADAPT program,[214] which
[214] Claimant’s bundle, page 208.
Ms Sear subsequently undertook. However, that opinion does not mean that the doctor did not provide a contrary opinion to the decision taken over two years later to undergo the surgery. The later Dr Bodel report, whilst not explicit, is consistent with an acceptance of the appropriateness of the surgical procedures.
We otherwise agree with the claimant’s submission that Dr Coroneous postulating alternate types of treatment in accordance with studies and general discussion is not determinative in a particular case. This conclusion is otherwise consistent with the test that the treatment is “reasonable and necessary in the circumstances” (emphasis added).
We accept Ms Sear’s evidence of her improvements over four to five years following the surgical procedures.
We accept that the surgical procedures were a last resort following substantial conservative treatment. The fact that Ms Sear was desperate is shown by her selling her house to fund the procedures.
We also agree with Medical Assessor Kenna’s observation that Dr Hsu has a patient/doctor relationship which is unlike a pure medicolegal opinion such as that expressed by Dr Coroneous and the decision to operate followed an extensive unsuccessful conservative approach.[215] In particular, we endorse and adopt the following observation by Medical Assessor Kenna.[216]
“Whilst there may be some dispute with regard to the desirability of the surgery procedures, one needs to note that clearly with regards to both treating surgeon and patient, that the patient, Gillian Sear, reached the point where she considered that surgery was necessary in view of ongoing severity of symptoms and in that perspective reasonable as opposed to her previous quality of life at the time. From the point of view of Dr Hsu, he considered that in view of her current clinical symptoms at that point in time, that the surgical approach was reasonable and offered a potential therapeutic benefit.”
[215] Claimant’s bundle, page 67.
[216] Claimant’s bundle, page 68.
In the circumstances of Ms Sear’s case, we accept that both surgical procedures were reasonable and necessary in the circumstances.

The 2015 motor accident

The claimant submitted that the 2015 motor accident “resulted in an increase of [her] symptoms for a number of weeks, but within two months her symptoms had subsided to her pre-2015 accident state”.[217]
[217] Claimant’s bundle, page 2.
Ms Sear’s account is consistent with the hospital discharge record dated 29 October 2015.[218] That record referred to no major car damage with a flare up of chronic neck pain and a diagnostic impression of “minimal trauma”.
[218] Claimant’s bundle, page 395.
Dr Frost’s clinical notes of 30 October 2015, 18 November 2015 and 4 December 2015 only referred to an increase in neck pain following the 2015 motor accident.[219]
[219] Insurer’s supplementary bundle, pages 59 – 60.
When asked about Medical Assessor Kenna’s assessment on the 2015 motor accident the insurer submitted that it would be inappropriate to indicate that it accepted the findings of Medical Assessor Kenna suggesting that this would lead the Panel into error, citing Allianz Australia Insurance Ltd v Rutland[220]. The claimant reluctantly accepted the insurer’s position.
[220] [2015] NSWCA 328 at [25]-[27].
The insurer when asked what submissions it made in respect of the 2015 motor accident, submitted:
“The insurer has no further submissions to make in relation to this accident, and relies on its numerous earlier submissions and the evidence that is referred to in those submissions.”
The unsatisfactory state of that submission is that the insurer has not made “numerous earlier submissions” that the 2015 motor accident was causative of surgery and/or impairment and it is unclear what evidence the insurer relies upon to now suggest that the 2015 motor accident is relevant to either the assessment of impairment or the cause of the surgical treatment.
In the May 2020 submissions, the insurer noted the attendance at Concord Hospital which described the 2015 motor accident as “minimal trauma”.[221] That submission did not suggest that the 2015 motor accident was either causative of the need for surgical treatment and/or caused any impairment.
[221] Insurer’s bundle, page 14.
The parties accepted that the Panel could refer to the previous findings of Medical Assessor Kenna[222] but were required to consider the matter afresh.
[222] Insurer’s submissions 15/12/21 at 1(b); Claimant’s submissions, 17/12/21 at [1].
We do not accept the insurer’s submission that it was inappropriate to indicate whether it accepted that part of Medical Assessor Kenna’s findings citing Rutland as authority for the proposition. The Court of Appeal did not state in Rutland that a Panel could not rely on an agreement made by the parties. The relevant passages cited by the insurer do not preclude the parties from agreeing on issues, which they have otherwise done in this case. Whilst the Panel must conduct a new assessment, its task will normally be constrained by what is and what is not in dispute. That is not an assessment dealing with error but determining the issues as is presented by the parties.
The claimant on the one hand made submissions which stated what was and was not in dispute, and then separately “acknowledged” the insurer’s position that neither party can “narrow the issues in dispute”.[223] That position is hardly consistent.
[223] Claimant’s letter dated 23 November 2021.
The wording of s 63(3A) of the MAC Act requiring a “new assessment of all the matters with which the medical assessment is concerned” does not, in our view, restrain the parties from agreeing on issues. However, the insurer has made the submission concerning the 2015 motor accident which meant that we are required to determine this further issue.
The insurer has put the claimant to proof that the 2015 motor accident was not causative of impairment or the surgical proceedings in circumstances where it has received the benefit of the prior medical assessment for the 2015 motor injury. The insurer has not referred to any evidence that suggests a causative role from the 2015 motor accident when we requested a response to this question in the further direction.
We accept Ms Sear’s evidence to the Panel that the 2015 motor accident caused a short-term exacerbation of symptoms which settled to the pre 2015 motor accident level within a period of approximately two months. That evidence is consistent with the various histories recorded by doctors and the relevant contemporaneous notes. Indeed the contemporaneous notes appear to limit any exacerbation from the 2015 motor accident to the cervical spine.
The 2015 motor accident was recorded in the hospital discharge report dated 29 October 2015 as minor.[224]
[224] Claimant’s bundle, page 395.
Our conclusion is in accordance with the consistent medical evidence that the 2015 motor accident involved a short-term exacerbation of pain. Dr Coroneous expressed the opinion that there was no significant injury from the 2015[225] motor accident and that the surgeries were not caused by the 2015 motor accident.[226]
[225] Insurer’s bundle, page 183
[226] Insurer’s bundle, page 189.
Dr Muratore expressed the view that the “second motor vehicle accident was minor in nature and did not lead to an aggravation of the degenerative changes”.[227]
[227] Claimant’s bundle, page 330.
Dr Bodel described the 2015 motor accident as “very minor”.[228]
[228] Claimant’s bundle, page 214.
The opinion of Dr McIntosh does not directly deal with a minor rear collision but his opinion of the relationship between change in relative velocities and the severity of injury suggests a minor accident is less likely to cause injury.
The conclusion that the 2015 motor accident caused a short-term exacerbation of symptoms is consistent with the opinion expressed by Medical Assessor Kenna. The parties accepted that we could consider that opinion in our assessment.
If there was other medical evidence contrary to this conclusion, we could not identify it and the insurer did not assist us when it was expressly asked to comment on the issue.
For these reasons, we conclude that the 2015 motor accident involved a short-term exacerbation of symptoms which ceased after a period of approximately two months. That conclusion means that the 2015 motor accident did not cause or contribute to the need for any surgical procedures and did not contribute to any impairment.

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.
Ms Sear’s impairment is permanent because the surgery is irreversible.

That assessment is otherwise identical to those doctors[229] who have assessed the lumbar spine if causation of injury and the surgical procedure was established.
[229] Such as Dr Muratore and Dr Bodel.
Our conclusion is consistent with the parties’ agreement on the appropriate assessment if injury and causation of surgery is otherwise established.
There is otherwise the assessment of the scar from the lumbar surgical procedure. We have not separately assessed that scar although the parties appeared to have accepted that both scars were assessed at 1%. As we have found that Ms Sear’s impairment caused by the motor accident is greater than 10%, it is unnecessary to consider the appropriate assessment for the lumbar spine scar only.
The parties agreed that it was unnecessary for Ms Sear to be physically examined by the Panel. Our conclusion on causation, consistent with the agreement of issues set out in the parties’ submissions, means that the claimant has a greater than 10% impairment caused by the motor accident.
We are not satisfied that there should be any deduction pursuant to clause 1.31 of the Guidelines. The Guidelines provide for the need for objective evidence of a symptomatic impairment in the same region. We refer to our earlier findings on the claimant’s pre-existent condition and find that there is no objective evidence of symptomatic impairment in the lumbar spine.
The 2015 motor accident did not cause any subsequent impairment (clause 1.34 of the Guidelines). We are otherwise not satisfied of any objective evidence of any subsequent unrelated injury or condition which caused impairment such as the use of crutches and/or the wearing of the cam boot.

FINDINGS

The replacement certificates are set at the commencement of these Reasons.

[2022] NSWPICMP 15

8 February 2022