Ishak v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 490
•30 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ishak v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 490 |
| CLAIMANT: | Robert Ishak |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 30 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injuries in a motor accident on 4 June 2019; the issue was whether a total hip replacement was reasonably and necessary and caused by the motor accident; the claimant had a pre-existing right hip condition which was rendered symptomatic by the motor accident; although it is unusual, it is medically plausible that the right hip could be injured in a minor rear end collision from the jarring nature of the accident; the fact that the claimant had a significant pre-existing condition rendered him more vulnerable to an exacerbation; various factors considered when assessing whether the surgery was reasonable and necessary in the circumstances; Diab v NRMA referred to; the motor accident materially contributed to the need for surgery because it rendered the right hip condition symptomatic and significantly brought forward the need for the operation; AAI Ltd v Phillips referred to; Held – findings made that proposed surgery both reasonable and necessary and caused by the motor accident. |
| DETERMINATIONS MADE: | Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel revokes the certificate dated 22 March 2022 and issues a new certificate determining that: · total right hip replacement IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · total right hip replacement RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. |
REASONS
BACKGROUND
Mr Ishak suffered injury in a motor accident on 4 June 2019 when his vehicle was rear ended by the insured vehicle.
The insurer insured the owner and driver of other vehicle for liability to pay Mr Ishak any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute are whether a proposed total right hip replacement is reasonable and necessary in the circumstances and caused by the motor accident.
Section 7.17 of the MAI Act defines a “medical dispute” to include a dispute between the parties about a medical assessment matter.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the dispute is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor McGrath who issued a medical assessment certificate dated 22 March 2022. Medical Assessor McGrath concluded that the proposed right hip replacement related to the motor accident but was not “reasonable and necessary”. The Medical Assessor noted that the examination findings were consistent with a painful disorder about the hip and pelvis associated with extreme pain disorder and stated:
“Mr Ishak does have moderate osteoarthritis in the right hip but is far from certain that a total hip replacement will correct his problems. Nonetheless, it is a reasonable proposition given the total failure of conservative treatment thus far.
The legislation requires that the procedure be both reasonable and necessary. Given his lack of useful knowledge and dependence on passive interventions, a consultation with a rehabilitation or musculoskeletal physician, is more appropriate. His high levels of anxiety are also a likely aggravator and negative predictor for surgical success. He is unlikely to respond to pain injection procedures as outlined by Dr Nazha and Dr Nazha agrees.
The argument for THR most relies on the perceived need to do something.”
THE REVIEW
The applications for referral of the medical assessments to a review panel were made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
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.[3]
[3] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 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 review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] 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 proceedings solely based on the written application.[6]
[6] 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.[7]
[7] Section 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this Direction.
STATUTORY PROVISIONS
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses" ) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with Schedule 2 of the MAI Act that defines a medical assessment matter as “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” (emphasis added).
Clause 2 (b) of Schedule 2 of the MAI Act was recently amended with the inclusion of the words “or to be provided” inserted into the provision. That amendment followed a previous Review Panel decision rejecting the proposition that there was power under the MAI Act to determine a claim for future treatment.[8] Accordingly, there is a clear statutory intention that the power exists because of the recent amendment.
SUBMISSIONS
[8] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
[9] Claimant’s bundle, p 2.
Mr Ishak submitted that his right hip condition was separate to a back injury or possible hernia condition. The claimant submitted that Dr Bentivoglio did not have the necessary expertise to comment on the impact of the motor accident and he did not review the photographs.
Mr Ishak submitted that there was no history of prior right hip symptoms as evidenced by the clinical records of the treating general practitioner, Dr Alexander. The onset or development of degenerative changes were caused by the motor accident. Further, the medical evidence supports the view that Mr Ishak sustained a labral tear in the motor accident.
Claimant’s submissions dated 19 May 2022[10]
[10] Claimant’s bundle, p 123.
The claimant noted he had been under the treatment of Dr Waller since August 2020 who recommended a total right hip replacement (THR). He submitted that the Assessor fell into error by suggesting a consultation with a rehabilitation physician was more appropriate give the failure of conservative treatment. It was also suggested that the THR will enable the claimant to return to full-time employment.
The claimant submitted that the Medical Assessor erred in failing to explain why he disagreed with the opinions expressed by Dr Gothelf and Dr Waller.
Insurer’s submissions dated 24 May 2021[11]
[11] Insurer’s bundle, p 5.
The insurer noted that this was a rear end collision where the ambulance was not called, and the claimant not conveyed to hospital. The photographs show minor damage to the claimant’s vehicle and none to the insured vehicle.
Initial certificates issued by the general practitioner referred to degenerative changes in the spine.
An X-ray of the right hip dated 29 May 2017 noted degenerative changes in the joint and were “consistent with developing osteoarthritis”.
Dr Giblin opined that the right hip and buttock pain came from the back. Associate Professor Steel did not believe that surgery was required. In a subsequent report the doctor opined that the back pain arose from the altered gait by reason of the hip pathology.
Treatment plans for Greenfield Physiotherapy show the claimant had 28 treatment sessions without any sustained benefit.
The insurer submitted that the claimant was symptomatic in the right hip since
May 2017. In accordance with the opinion of Dr Bentivoglio, the effects of the motor accident were minimal or otherwise of no effect.
Insurer’s submissions dated 7 July 2022[12]
[12] Insurer’s bundle, p 3.
The insurer submitted that Medical Assessor McGrath exercise his clinical judgement and provided adequate reasoning for his determination that the total hip replacement was not necessary.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
Pre-motor accident records
The clinical records of the general practitioner for the period prior to the motor accident do not reference any right hip condition save as to the consultation in May 2017.[13] The clinical notes in October 2014 refer to a long-term history of back pain.[14]
[13] Claimant’s bundle, pp 4 – 29.
[14] Claimant’s bundle, p 14.
On 29 May 2017 the general practitioner noted right groin pain since 20 May 2017 on a background of lifting at work.[15] The doctor issued a workers compensation certificate of capacity diagnosing “umbilical and paraumbilical hernias”. The umbilical hernia was shown in an abdominal wall ultrasound dated 25 May 2017.[16] Mr Ishak was certified fit for restricted duties for a one-month period[17] and referred to Dr Hong.[18]
[15] Insurer’s bundle, p 250.
[16] Insurer’s bundle, p 323.
[17] Insurer’s bundle, p 269.
[18] Insurer’s bundle, p 271.
An X-ray of pelvis and right hip dated 29 May 2017 noted right groin pain. The doctor observed osteophytic lipping of the femoral head, dystrophic calcification with features “consistent with developing osteoarthritis”.[19]
[19] Insurer’s bundle, p 103.
A further WorkCover certificate dated 29 May 2017 diagnosed right groin strain and aggravation of right hip osteoarthritis.[20] Mr Ishak was certified fit for pre-injury duties from that date.
[20] Insurer’s bundle, p 272.
Dr Hong, surgeon provided a report dated 9 June 2017 noting heavy lifting at work. The doctor recommended repair of the paraumbilical hernia.[21] In August 2017 Dr Hong noted that Mr Ishak was three weeks post paraumbilical hernia repair with no pain.[22]
[21] Insurer’s bundle, p 333.
[22] Insurer’s bundle, p 354.
On 19 September 2017 Dr Hong noted that Mr Ishak was non-tender, pain free and back at work in the seasoning section.[23] In November 2017 Mr Ishak was reported as back at work lifting up to 20 kg on usual hours.[24]
[23] Insurer’s bundle, p 356.
[24] Insurer’s bundle, p 366.
Post motor accident
The claimant attended his general practitioner on 13 June 2019 complaining of lumbar and thoracic pain. On 15 June 2019 the general practitioner noted that the right hip was “painful and worse since the MVA”.[25]
[25] Claimant’s bundle, p 30.
The certificate dated 20 June 2019 referred to pain toward the buttock. A certificate dated 16 September 2019 specified that the claimant “developed sever [sic] hip” pain.[26]
[26] Insurer’s bundle, p 36.
Subsequent attendances with the general practitioner referred to ongoing right hip pain.
The claim form dated 2 July 2019 noted the motor accident when the claimant’s vehicle was struck for behind by the insured vehicle.[27] Injuries to various body parts were noted in the claim form.
[27] Insurer’s bundle, p 18.
The MRI scan of the right hip dated 1 August 2019[28] showed an extensive superior labral tear with cysts and tendinosis with mild bursal inflammation.
[28] Claimant’s bundle, p 61.
The MRI scan of the cervical spine dated 4 August 2019 showed mild spondylotic changes without neural impingement.[29] Low grade disc bulges with mild joint arthropathy was seen in the lumbar spine.
[29] Claimant’s bundle, p 68.
The whole-body scan dated 26 August 2019 noted a clinical history of pain in various parts including the right hip since the motor accident with degenerative arthritis in the right sacroiliac joint.[30]
[30] Insurer’s bundle, p 109.
A CT guided right hip intra articular injection on 15 May 2020 was reported to have reduced pain from 9/10 to 6.5/10.[31]
[31] Insurer’s bundle, p 419.
The MRI scan of the right hip and pelvis dated 15 August 2020 showed femoral-acetabular impingement, developing osteoarthritis in the hip joint and small anterosuperior labral tear.[32]
[32] Claimant’s bundle, p 106.
Dr Matthew Giblin, orthopaedic surgeon provided a report dated 21 August 2019.[33] The doctor noted that he was unable to get a good assessment of the right hip due to “a deal of anxiety and depression”. Dr Giblin stated:
“As he has no groin pain or anterior thigh pain, I suspect the problem he is getting in his buttock and right posterior thigh relates to his back rather than his hip.”
[33] Insurer’s bundle, p 110.
Associate Professor Timothy Steel, neurosurgeon, provided a report dated
9 December 2019.[34] At that time there was uncertainty as to the pain generator as L5/S1 facet joint injection did not provide sustained relief despite the bone scan showing moderately intense uptake in that joint. Recommendations were made for a right L4/5 foraminal injection.[34] Insurer’s bundle, p 132.
Associate Professor Steel reviewed Mr Ishak on 9 September 2020 noting substantial relief of pain from the L4/5 injection undertaken earlier that year. The doctor did not recommend lumbar surgery as he could not see any “sinister pathology in the lumbar spine MRI scan”. The Associate Professor opined that the low back pain was arising from the gait alteration as a result of the hip pathology.
Associate Professor Waller, orthopaedic surgeon, initially examined the claimant on
23 March 2020.[35] At that time Mr Ishak had low back pain radiating into the right loin and restriction of movement in the right hip. Cortisone injection into the right hip was recommended.[35] Insurer’s bundle, p 117.
On 28 July 2020 Mr Ishak reported to Associate Professor Waller that the cortisone injection reduced right hip symptoms for two to three days.[36]
[36] Insurer’s bundle, p 121.
Associate Professor Waller opined that right groin pain is not related to the hernia due to the radiation of pain to the right hip and the improvement of symptoms following the cortisone injection. The doctor recommended a total hip replacement.
In a further report dated 28 October 2019 Associate Professor Waller noted hip osteoarthritis which was treated conservatively. The back was considered the “main problem and should be addressed first”.[37]
[37] Insurer’s bundle, p 124.
On review in March 2021 Associate Professor Waller noted that Mr Ishak used a stick to ambulate complaining of severe pain in the right hip. A total hip replacement was recommended.
In a report dated 11 November 2021, Dr Alan Nazha, pain physician opined that
Mr Ishak would not benefit from interventional pain therapies and recommended that the claimant undergo a hip replacement.[38][38] Claimant’s bundle, p 120.
Qualified opinions
Dr John Bentivoglio, orthopaedic surgeon was qualified by the insurer and provided a report dated 23 October 2020.[39] In respect of the right hip injury, Dr Bentivoglio stated:
“With regard to his right hip biomechanically the mechanism of the injury would not cause any injury to his hip joint. Certainly, I would not expect that the labral tear has been caused by the motor vehicle accident. He has however developed degenerative osteoarthrosis involving his hip and his treating specialist feels that he would benefit by a hip joint replacement. That is probably reasonable. As to how much need for the hip joint replacement is as a result of the motor vehicle accident, I consider to be minimal or none. It is not however totally possible to completely rule out the motor vehicle accident to contribute to the early degenerative changes involving his hip. It is interesting to note that the original bone scan (performed more than 2 months after the motor vehicle) did not show evidence of degenerative changes involving his hip.”
[39] Claimant’s bundle, p 86.
Dr Bentivoglio opined that the proposed hip replacement was reasonably necessary and there were no reasonable alternatives. The doctor otherwise opined that it was highly unlikely that the development of the degenerative osteoarthrosis in the right hip was caused by the motor accident.
In a supplementary report Dr Bentivoglio referred to the prior right hip and pelvic X-rays which he dated as 29 May 2019 [sic 2017] and described them as supporting the notion that the claimant had “recently … been symptomatic”.[40] The doctor concluded that the claimant had been symptomatic in the right hip prior to the motor accident.
[40] Insurer’s bundle, p 169.
Dr Bentivoglio concluded that the treatment was due to the pre-existing degenerative condition.
Dr Todd Gothelf, orthopaedic surgeon, was qualified by the claimant and provided a report dated 27 August 2021.[41] The doctor opined that the motor accident caused an aggravation of pre-existing degenerative arthritis principally because of an absence of pre-existing hip complaints, ongoing complaints since the accident and various opinions supporting the causal link. The doctor stated:
“From the mechanism of injury described, it is more likely than not that the right hip pathology was pre-existing. However, Mr Ishak had no right hip symptoms prior to the accident. Thus, on the balance of probabilities and based upon the above evidence, it is more likely than not that the subject accident resulted in an aggravation of the underlying condition and resulted in significant symptoms and the need for treatment. It is more likely than not that Mr Ishak would not have developed right hip symptoms at this time in his life and thus would not have required surgical treatment but for the subject accident.”
[41] Claimant’s bundle, p 108.
Dr Gothelf agreed with Dr Bentivoglio that the labral tear and arthritis was pre-existing. He opined that the motor accident contributed to the development of symptoms and arthritis.
RE-EXAMINATION
The Panel determined that Mr Ishak be examined in person by Medical Assessor Berry. Medical Assessor Moloney participated by telephone. The examination report is as follows:
“I examined Mr Robert Ishak in my Fairfield rooms with Dr Shane Maloney present by means of telephone on 22 November 2022.
Mr Ishak attended with an interpreter, and I was told that he is 53 years of age and dominantly right-handed. He was a refugee from Iraq and came to Australia in 2003. He told me that he worked in a food factory working six days a week up to 12 hours per day. The work involved standing with loading and packing of food from a conveyor belt which was heavy. It took him 11 – 12 minutes to drive from home to his workplace and he had been employed for 10 years.
History of Motor Accident
The motor vehicle accident took place on 4 June 2019 at 4.30 am. Mr Ishak was the driver of a Toyota Camry wearing a seatbelt and was the sole occupant. He was on his way to work when a truck reversed out of a driveway. He stopped his vehicle to allow the truck to come out onto the road and he was hit from behind by another vehicle. He was shaken and dazed by the accident. Police and ambulance did not attend.
Mr Ishak was able to self-extricate and exchange details and also took photos of one another’s car. He was then able to drive himself to work, although he was suffering from pain in his neck, right side of his back, down his buttock and right side to the knee. Once he reported the matter to his supervisor, he was sent home and he then attended his general practitioner the same day.
Mr Ishak was sent for X-rays and has not been back to work since that time.
Current Situation
Mr Ishak confirmed today that he is not working. He has neck pain which comes and goes, and which is brought on by turning left or right which makes it difficult for him to drive and he only drives short distances. He had pain in both shoulders which has settled. He experiences pain in the right side of his back which radiates into the buttock and down the right thigh and there is a feeling of numbness involving all of the right leg from the hip to the knee. Mr Ishak did point to the femoral area as also being sore.
Past History
Ishak stated that he had an episode of back pain, but we were unable to determine what caused it and it settled spontaneously. He had also developed an umbilical hernia which was repaired by Dr Khiem Hong under Workers’ Compensation at Campbelltown Private Hospital. Apart from that he has had no other injuries, accidents or claims for compensation.
Physical Examination
Mr Ishak was 172 cm in height and 79 kgs in weight. He walked with a slight sided limp but was not using a walking stick. He told me that the physiotherapist had told him to stop using the walking stick.
Thoracolumbar Spine
With the claimant standing, he was tender in the right paraspinal muscles. There was no guarding and no spasm. The lumbar lordosis was flattened. Flexion was to one third of the normal range bringing the hands to the upper thighs. Extension was zero and the claimant refused to show lateral rotation and lateral flexion, saying that this caused too much pain.
Lower Extremities
With Mr Ishak seated, the right knee reflex was absent, the other reflexes were present. With the claimant supine, no movements of the hip could be demonstrated on the right side and the left side was also very restricted. He indicated that the entire right thigh circumferentially was numb. He demonstrated 10 degrees of straight let raising on the right and 20 degrees on the left. However, when he sat up he was noted to flex the right knee to 90 degrees and the right hip to 90 degrees.
Clinically the right hip is the source of the ongoing pain.
No other physical examination was conducted.”
FINDINGS
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
[42] [2021] NSWCA 287 at [40], [41] and [45].
[43] [2022] NSWCA 31 at [11], [21], [64].
The review is a new assessment of all matters with which the medical assessment is concerned.
Our findings on the nature of the injury sustained are based on a review of the clinical records, the Medical Assessor’s examination and medical reports in the context of using the specialist medical knowledge on the Panel.
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 MAI Act[44]. In Raina v CIC Allianz Insurance Ltd[45] 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.”
[44] See s 3B(2) of the Civil Liability Act 2002.
[45] [2021] NSWSC 13 (Raina) at [65].
Injury
In 2017 the right hip was X-rayed in the context of a paraumbilical hernia which was surgically treated. That X-ray showed a significant pre-existing condition of the right hip.
Following the March 2017 X-ray, the claimant underwent a hernia operation and recovered from that procedure.
Dr Bentivoglio opined in his supplementary report that the claimant’s right hip was symptomatic prior to the motor accident. The basis for the Doctor’s conclusion is evident from the following passage:[46]
“I have subsequently seen results of plain x-rays taken of his pelvis and right hip on 29 May 2019. The radiologist reported that they showed features consistent with developing arthritis in the hip. This is obviously a pre-existing abnormality and recently had been symptomatic (prior to the subject accident) as his local doctor has arranged to have these x-rays performed.”
[46] Insurer’s bundle, p 169.
The prior hip X-rays were taken on 29 May 2017 that is at least two years prior to the motor accident. Based on an assumption of an incorrect date (29 May 2019),
Dr Bentivoglio concluded that the claimant was symptomatic as of 4 June 2019. That error was part of the doctor’s reasoning in concluding that there was “no impairment rating for the hip”.The right hip was not mentioned in any clinical note until after the motor accident. Accordingly, we accept that right hip was asymptomatic prior to the motor accident consistent with the clinical notes and the claimant’s history recorded by a number of medical practitioners.
Although it is unusual, we accept that it is medically plausible that the right hip could be injured in a minor rear end collision from the jarring nature of the accident. The fact that the claimant had a significant pre-existing condition rendered him more vulnerable to an exacerbation.
The insurer referred to the photographs which showed minor damage and tended to suggest that no injury would occur. Whilst that is a relevant factor, it must be contrasted with the contemporaneous record of complaints of right hip pain.
We accept that it is unlikely that the nature of this motor accident aggravated the pre-existing degenerative right hip condition. However, consistent with the contemporaneous notes and consistent ongoing complaints, we accept that the motor accident rendered the degenerative condition symptomatic.
For these reasons we accept that the motor accident caused a right hip injury.
Reasonable and necessary in the circumstances
Mr Ishak 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[47], Grove J stated:[48]
“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.”[47] [2003] NSWCA 52 (Clampett).
[48] 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.[49]
[49] 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.[50] 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.
[50] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
There was a lack of assistance by the parties on whether the proposed surgery is “reasonably necessary in the circumstances”. The parties did not refer to particular matters relevant to the determination of this issue.
The Panel accept that the proposed surgery is reasonable and necessary in the circumstances. This conclusion is partly based on the clinical examination undertaken by Medical Assessor Berry.
Mr Ishak had become extremely symptomatic with restricted mobility. The surgery is the only appropriate treatment for the symptoms and degenerative osteoarthrosis in circumstances where other forms of conservative treatment were unsuccessful. We do not accept that further conservative treatment is appropriate given the perceived lack of benefit to date.
The proposed surgical procedure is accepted as being medically appropriate to treat this type of pathology and symptomatology. That view, expressed by the medical expertise within the Panel, is consistent with the expert medical opinion in this matter.
Noting the claimant’s pain focus, we accept the proposed treatment is otherwise expected to significantly reduce symptoms. We conclude that this type of treatment is accepted by medical experts as being appropriate and likely to be effective. Our view is consistent with the treating evidence recommending surgery.
Finally, we acknowledge that the proposed treatment is reasonably expensive. However, given the claimant’s symptomatology and the other matters raised herein, we conclude that a proposed total right hip replacement is reasonable and necessary in the circumstances.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson[51]. These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[51] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[52] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[52] [2018] NSWSC 1710 at [29] (Phillips).
Findings of fact in other cases, do not create legal precedent: Edwards v Noble.[53] However, McKenzie v Wood[54] is an example of where a motor accident materially contributed to the need for treatment where the surgery would have eventually occurred.
[53] [1971] HCA 54 at [14] per Barwick CJ.
[54] [2015] NSWCA 142 (McKenzie).
Mr Ishak was asymptomatic prior to the motor accident. In these circumstances it is likely that Mr Ishak would have continued to function without hip pain for the foreseeable future if the motor accident had not occurred. Since the motor accident there has been consistent complaints of right hip pain.
We accept that the motor accident materially contributed to the need for surgery because it rendered the right hip condition symptomatic and significantly brought forward the need for the operation.
Whilst all cases are fact sensitive and do not create legal precedent, the conclusion by the Court of Appeal in McKenzie is consistent with this approach. That is, surgery may be causally related if the tortious event rendered a pre-existing condition symptomatic and caused the need for surgery.
We conclude that the proposed treatment is caused by the motor accident.
CONCLUSIONS
For these reasons the certificate issued by Medical Assessor McGrath is revoked. The replacement certificate is set out at the commencement of these Reasons.
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