Kearns v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Kearns v Allianz Australia Insurance Limited [2024] NSWPICMP 559
CLAIMANT:	Barbara Kearns
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	12 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of decision from Medical Assessor (MA) that three level cervical spine surgery was not related to injuries sustained in accident and not reasonable and necessary in the circumstances; claimant gave history of no previous neck or back symptoms before the accident however MA said there was evidence of imaging reports and facet joint injections in 2014; neither party had put any 2014 imaging or imaging reports before the MA; Medical Review Panel sought copies of medical records from 5-10 years before the accident; insurer obtained records which indicated symptoms of neck pain reported to GPs in 2014, 2015, and 2018; there were referrals for radiology but no reports on file and no specialist or allied health referrals or reports; claimant continued to work; claimant reported symptoms of neck pain immediately after the accident which failed to improve; a month after the accident claimant referred to neurosurgeon who advised surgery; insurer refused and claimant had physiotherapy, pain management and medication; neurosurgeon repeated request for surgery in 2022; claimant examined by audio-visual means for purpose of a history; Medical Review Panel determined no need for physical examination; post-accident radiology revealed severe canal stenosis and degenerative changes; Diab v NRMA cited with approval; AAI Limited t/as AAMI v Phillips followed; Held – accident caused significant aggravation of underlying degenerative condition which has continued; surgery is reasonable and necessary in the circumstances; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Nair dated 17 November 2023. 2. Certifies that the treatment proposed by Professor Di Ieva on 8 June 2021, to be provided to the claimant is reasonable and necessary in the circumstances and relates to the injury caused by the motor accident for the purposes of s 3.24 of the Act.

STATEMENT OF REASONS

INTRODUCTION

Barbara Kearns was involved in a motor accident on 11 March 2021. She was driving her car in a car park when she was hit by a reversing vehicle.
Ms Kearns says she injured her neck in the accident. Ms Kearns made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that she said caused her accident and her injury.
A medical dispute about treatment (cervical spine surgery proposed by Professor Di Ieva) has arisen in connection with that claim and Ms Kearns referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Nair determined on 17 November 2023 that the surgery was not reasonable and necessary in the circumstances.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 6 February 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 9 February 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Ms Kearn’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act. There is no dispute in the current proceedings that Allianz is the relevant insurer.
Section 3.24, in Division 3.4, provides as follows:
(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.

Dispute resolution

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, 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 (Entitlement to statutory benefits for treatment and care)”.
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Nair’s, further medical assessments and the review of medical assessments by this Panel[2].
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Nair examined the claimant on 1 September 2023 and completed the assessment on 17 November 2023.
Medical Assessor Nair identifies the dispute as a dispute about whether treatment and care is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the MAI Act.
He notes at [2] that the treatment in dispute is a posterior laminectomy and fusion at C4-C7 and at [3] refers to the treatment in dispute is a three-level anterior cervical discectomy and fusion. Both surgeries were proposed by Professor Di Ieva.
Medical Assessor Nair at [8] records a history from the claimant that she had no symptoms in her neck or lumbar spine before the accident. He then says, “however, scrutiny of medical imaging reports reveals treatment and care including facet joint injections as well as CT scans dating to 2014.”
Medical Assessor Nair has a history of the clamant being a pedestrian when a reversing car (in a car park) collided with her. The claimant reported pain in the sub-axial cervical spine radiating into the trapezial region.
On examination of the cervical spine, he says:
(a)    there was a reduction of movement but no asymmetry;
(b)    reflexes were present and equal;
(c)    Hoffman’s sign (like the Babinski sign designed to identify corticospinal tract dysfunction)) was negative, and
(d)    there was no paraesthesia in the upper limbs.
In terms of consistency Medical Assessor Nair again at [16] refers to the previous 2014 CT scans and facet joint injections. At [18] he then reviews the radiology but mentions only the

15 April 2021 post accident MRI of the cervical spine.
He diagnosed cervical degenerative disc disease present before the accident and says the treatment is not reasonable and necessary with limited reasons provided.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant argues that the Medical Assessor applied the wrong test for causation at [3.1.1] and [5.1] but does not provide any further detail.
At [3.1.2] the claimant says the Medical Assessor relied on an inaccurate history and material not put before him. In particular the claimant says the Medical Assessor referred to “facet joint injections and CT scans dating to 2014.” The claimant says the only scan attached to the application or reply form was an MRI of the cervical spine from 15 April 2021.
The claimant says at [3.1.3] and from [5.8] that the issue of causation was not raised by either party and that the only issue raised by the parties was the issue about whether the claimant’s surgery was reasonable and necessary treatment.
Finally, the claimant submits at [3.1.4] and at [5.10] that the Medical Assessor did not provide sufficient reasons for his decision and that his decision was reached by relying on an incorrect history and documents not before the Assessor.

Insurer’s submissions

The insurer notes at [2.2] that there are no submissions from the claimant in support of the assertion the Medical Assessor applied the wrong test of causation. The Insurer notes the test is that of “material contribution” and refers to the decision of AAI Limited t/as AAMI v Phillips[3] and suggests at [2.4] the Assessor must consider “whether the treatment would not have arisen but for the occurrence of the accident.”
[3] [2018] NSWSC 1710 (Phillips).
The insurer also submits at [2.5] that there is a two-fold test of whether the accident could have caused or contributed to the need for the surgery and whether it in fact did.
The insurer notes at [2.6] that Medical Assessor Nair has highlighted a pre-existing medical history and found the claimant’s injury (that needed surgery) was not caused by the accident but her pre-existing degenerative disease.
The insurer accepts at [3.5] that details of the 2014 cervical spine CT scan and facet injections were not put before the Medical Assessor by the parties but says that the claimant has not explained how that is material.
The insurer refers at [4.1] to the claimant’s suggestion that causation of the claimant’s cervical spine injury was not in issue. The insurer says that the issue of causation was always in issue and that s 3.24(2) of the MAI Act requires there to be a finding of causation in order for treatment to be allowed.
The insurer also submits at [5.6 and 5.7] that the Medical Assessor set out in his reasons his opinion as to the causal relationship between the cervical spine injury and the accident and has formed his own opinion about the treatment.

Procedural matters

First directions

The Panel issued directions to the parties on 14 February 2024. The Panel noted that paragraph 5.9 of the claimant’s submissions stated:
“Neither the application nor the reply raises issue with whether the claimant’s cervical spine injury is causally related to the subject accident. The Respondent’s submissions take the position that the treatment is not reasonably necessary as a result of the accident, citing the need for conservative treatment options and the need for a causal link between the treatment and the accident-related injuries.”
The Panel said that the first sentence of this paragraph suggested the causal relationship between accident and surgery was not in issue however the second sentence suggests the insurer has raised an issue of the causal link between the accident and surgery.
The Panel advised the parties that, subject to confirmation and clarification from them, the Panel was proceeding on the basis that it has to determine:
(a)    the nature of the cervical injury caused by the accident;
(b)    whether the treatment proposed “relates to” that injury, and
(c)    if the answer to that question is yes, whether the treatment proposed is reasonable and necessary in the circumstances.
In the light of the apparent issue about the relationship of the accident to the proposed treatment, the Panel requested copies of the claimant’s pre-accident treatment records from her usual GP the five to 10 years before the accident.
The Panel requested bundles of documents from each of the parties.

First preliminary conference

The Panel met on 28 March 2024 and reported to the parties on 3 April 2024.
The Panel noted that what had been referred for assessment was a medical assessment matter declared as such in accordance with schedule 2(2)(b) and that this involved a consideration of both causation and the reasonableness and necessity of treatment. The Panel pointed to the inconsistency in the claimant’s submissions and noted that there had been no clarification from the parties about whether causation was in issue.
The Panel deferred arranging a re-examination until there was clarification of the issues in dispute and provision of the pre-accident records.

Second preliminary conference

The Panel met again on 10 May 2024 and reported to the parties on 15 May 2024.
The Panel noted at [8] that it had not received submissions from the parties specifically on the point about the scope of the review and so advised the parties it was proceeding on the basis that the Panel would determine:
(a)    the nature of the cervical spine injury caused by the accident;
(b)    whether the treatment proposed “relates to” that injury, and
(c)    if the answer to that question is yes, whether the treatment proposed is reasonable and necessary in the circumstances.
The Panel summarised the additional pre-accident documents it had received and said at [13] that:
“Assessor Nair on page 3 of his Certificate stated that the claimant “has had previous cervical facet joint injections as well as multiple CT scans”. The Panel could find no evidence for these having occurred in the documents before us. It is the preliminary view of the Panel that such evidence, if it was in the documents, might indicate a significant pre-existing cervical spinal problem. It is the preliminary view of the Panel that the absence of evidence about cervical facet joint injections in the documentation suggests that Medical Assessor Nair may have had documentation before him relevant to some other person which he has referred to in error.”
The Panel referred at [14] to the case of Phillips and asked for any other relevant case law or decision providing an interpretation of s 3.24 and how it was to be applied.
The Panel advised at [17] that a re-examination would take place and that it would be by way of MS Teams. The Medical Assessors were of the view they needed only to take a history from the claimant but would not be assisted by a physical re-examination.
The parties were directed to provide final submissions by 31 May 2024 (the claimant) and

14 June 2024 (the insurer).

Claimant’s final submissions

The claimant referred at [3] to Phillips and says at [4.1] that her neck condition currently “is not simply the continuation of pre-existing degenerative changes.”
The claimant noted at [4.2] that the relevant Mudgee Medical clinic notes refer to a surgery consultation on 1 April 2014 for muscle spasms in the neck area and she attended for a wry neck on 19 January 2015 without “burning or tingling.”
The claimant says while there were complaints of neck pain before the accident, they did not require extensive treatment and her present radiculopathy is not a continuation of these previous complaints.
The claimant quotes at [4.6] the report on causation by the claimant’s treating surgeon dated 30 March 2022 noting he was of the view the accident was the only contributing factor.
The claimant submits at 5.1 that “but for” the accident, the need for the surgery would not have arisen.

Insurer’s final submissions

The insurer refers at [3.2] to Phillips and says at [3.3] the proposed procedure relates to the continuation of the pre-existing degenerative changes in light of the “extensive” pre-accident medical history.
The insurer refers at [3.4] to:
(a)    the Mudgee records refer to “stabbing constant” neck pain with radiation in the left arm and restricted range of motion throughout 2014 and 2015;
(b)    the Narromine records note a CT scan of the cervical spine with or without steroid injection was requested on 4 April 2018 due to three weeks of right sided neck pain and that she had been prescribed Panadeine Forte;
(c)    the Bogan Shire records refer to “severe facet arthropathy” aggravated by the car accident and “known osteoarthritis”, and
(d)    the MRI of 15 April 2021 says that multilevel degenerative changes are present with “no acute abnormality attributable to the accident.”
The insurer says at [3.6] that the claimant had cervical degenerative disc disease that is unrelated to the accident and the procedure planned does not relate to the accident-caused injury.

REVIEW OF THE EVIDENCE

Pre-accident records

Mudgee Medical Centre records commence with an entry on 16 August 2010. Relevant to the current dispute the records include:
(a)    references to long standing depression with some anxiety in April 2011 along with the cessation of smoking;
(b)    left carpal tunnel problems in August 2011 with referrals to specialists given. Nerve conduction studies by Dr Hammond confirmed severe abnormalities on the left and moderate to marked on the right and she was advised by Dr Kwa on 22 November 2011 to have surgery on both sides. This was done on 15 November 2012;
(c)    episode of shaking legs and weakness and falls in February 2012;
(d)    Achillies tendonitis in the left foot in March 2013;
(e)    1 April 2014 – sore neck for over a month, “went to hospital, diagnosed muscle spasms, given Panadeine Forte and Valium – helped pain but makes her drowsy and didn’t cure it.” On examination the claimant was tender on the left side and had minimal movement. Torticollis was stated to be the issue and a referral for physiotherapy was given. The terms of the referral include this comment “she has virtually no movement in her neck in all directions”;
(f)    on 29 April 2014 the claimant was depressed and taking Panadol for neck pain as she could not get into the hospital physiotherapy and a referral to a private physiotherapist was given along with a script for Panadeine Forte;
(g)    on 9 and 27 October 2014 the claimant attended for left hip pain and had a trial of injections for trochanteric bursitis;
(h)    on 19 January 2015 the claimant attended complaining of a “terrible pain in neck radiating down L arm, started 1 week ago, terrible stabbing pain, constant. Not burning or tingling. Tried Nurofen plus, Panadol, Panadeine Forte, heat pack. Hurts when moves her neck.” The claimant also reported chest pain. On examination she had no tenderness, and the diagnosis was of a “wry neck”. A pamphlet was given and a referral for physiotherapy provided;
(i)    on 27 January 2015 and 12 March 2015 the claimant attended for sleep issues;
(j)    on 12 January 2016 the claimant attended with severe back pain which she said had been present for three weeks. She reported having been to a Dubbo medical centre and having a normal x-ray. She was taking Naprosyn and Palexia and Valium. She reported no injury but that four months earlier she had been told she had a bulging disc and was given an injection in the emergency department (no hospital identified). Ms Kearns had a limited range of motion, and a referral was given for physiotherapy. Ms Price provided physiotherapy to the lumbar spine;
(k)    on 18 February 2016 the claimant was still having back pain and had borrowed a friend’s Panadeine Forte. She was referred for radiology and physiotherapy. There was further attendance on 14 July 2016 for back pain.
Narromine Shire Family Health Centre has provided records from 2016 to date. These indicate:
(a)
a patient health summary from the previous Mudgee practice lists the claimant’s current medications and active past history. This document does not mention neck symptoms, but does suggest a lumbar spine CT scan was reported on

19 February 2016 and that right shoulder investigations were done in 2016/17;
(b)    there is a list of “investigation requests” at page 170 of the Narromine records. In that list, on 4 April 2018 the claimant was referred for a CT scan of the cervical spine “+/- steroid injection” with the reason given as “right sided neck pain, no radiculopathy ?osteoarthritis.” The corresponding note[4] in the records of that day notes “neck pain for 3 weeks 7/10. No radiating pain, no weakness or numbness, can’t get comfortable at night ?aggravated by carrying vacuum cleaner at work, no history of trauma.” The examination records there was reduced right rotation, but arm tone, power and reflexes were normal. Panadeine Forte was prescribed;
(c)
it does not appear a CT scan was done as there is no report of it in the notes and no record of an attendance by the claimant with her doctor to discuss any findings from that procedure. The claimant attended on 23 April 2018 with right sided neck pain and neck pain was the subject of complaints on 24, 26 and

31 July 2018 related to Ms Kearns’ work duties. Panadeine Forte was prescribed, and a medical certificate given[5]. There is no evidence of cervical radiculopathy in these records and again no evidence before the Panel that the CT scan was done or steroid injections were given;
(d)    Ms Kearns had episodes of right shoulder and back pain resulting in a WorkCover claim and which led to right shoulder surgery. The claimant was still complaining of shoulder symptoms in 2019 and into early 2020;
(e)    on 15 May 2020 she was bitten by a dog on the right forearm;
(f)    on 16 July 2020 her shoulder injury was diagnosed as a frozen shoulder, Endone was prescribed. The claimant was still complaining of shoulder and hand pain on 30 December 2020. She was not improving with Panadol and had run out of all medication. Panadeine Forte was prescribed.
[4] Page 183 of the additional bundle.
[5] Pages 188- 189 of the additional bundle.

Bogan Shire Medical Centre have provided records from February 2021 to date, and these do not appear to include any pre-accident records. The claimant first attended on

26 February 2021 with gastrointestinal issues and left flank pain.

Claim form and claim documents

The claimant’s application for personal injury benefits was dated 30 March 2021[6]. The claimant says in it she was the driver of a car and that she was “driving to leave the car park and he reversed out into me.” She says she had a sore neck as a result and could not breathe and was very upset. The claimant also says she was taken to Dubbo Hospital by ambulance and was discharged on the same day as the accident.
[6] Page 11 of the claimant’s bundle.
The claimant says she has never suffered an illness or injury affecting the same part of her body. She was then 63 year of age.
Dr Kim completed the certificate of fitness (medical certificate) attached to the claim form dated 9 April 2021. He diagnosed a whiplash cervical strain and sprain caused by the sudden movement of her neck. He prescribed analgesia and Panadeine Forte and noted an x-ray on 16 March 2021 found severe foraminal stenosis and that the claimant needs an MRI of the cervical spine. He says she is unable to work due to severe pain.
Dr Kim’s next certificate of fitness available to the Panel is dated 16 May 2021[7]. He diagnoses a cervical canal stenosis and multilevel discopathy, refers to Panadeine Forte being prescribed and a referral to a neurosurgeon and physiotherapist given.
[7] Page 16 of the claimant’s bundle.
On 29 April 2021 the insurer wrote to the claimant accepting liability for her claim. On

8 June 2021, Dr Di Ieva requested approval from Allianz to proceed with the spinal decompression surgery, fix the motion segment and perform a spinal fusion. Allianz wrote to the claimant on 9 July 2021 declining to pay.
An internal review was sought of that decision and on 23 July 2021, the insurer issued a decision affirming its original decision[8]. The insurer:
(a)    refers to an original medical certificate from Dr Roman dated 4 January 2021 and a diagnosis of “pain, soft tissue injury post motor vehicle accident.”
(b)    the Police report dated 12 April 2021 refers to the accident as a major traffic crash although later says “non injury / non-fatal crash” and that a Holden reversed into a Toyota which was pushed into the claimant’s Jeep;
(c)    Dubbo Base hospital records refer to a low-speed accident when someone reversed in front of the claimant and the notes went on to say “no midline tenderness, right paravertebral tenderness, no seat belt marks and diagnosed a whiplash injury to the neck”;
(d)    the referral to Dr Tait of 21 April 2021 which says “I believe this is chronic change, present before car accident but given significant radiating pain, I’ve recommended specialist assessment”;
(e)    clinical notes of Bogan Shire Medical Centre of 22 April 2021 which refers to no significant radiculopathy but pain into the right shoulder and right upper arm;
(f)    the report of Professor Di Ieva refers to a motor bike accident and that before this the claimant had “minimal chronic cervical pain” but after the accident it got worse, and
(g)     radiology which refers to severe foraminal stenosis and multilevel degenerative changes.
[8] Page 28 of the claimant’s bundle.
The internal review went on to identify the issues the insurer had to consider, that is the relationship of the treatment to the injury caused by the accident and whether the treatment was reasonable and necessary. The insurer referred to advice from the State Insurance Regulatory Authority (SIRA) which was contained in 2014 guidelines. The insurer also referred to cl 4.77 of the Motor Accident Guidelines which says the insurer should follow the clinical framework for the delivery of health services. The insurer then says that it does, “not accept that the surgery is reasonable and necessary at this stage.”
In terms of causation the insurer accepted the claimant sustained a soft tissue whiplash injury which aggravated her pre-existing neck condition.
In terms of whether the treatment is reasonable and necessary the insurer does not refer to “in the circumstances” and says surgery should not be attempted in the absence of conservative measures and that structured physical therapy should be attempted first.

Treating GP medical records and reports

The ambulance record[9] has a history of a three-car crash in a car park with the claimant driving at 20 kms per hour when a 4WD reversed into the front passenger side and notes “car with minimal damage, nil airbags deployed”. The claimant got out of the car, denied any head injury or cervical spine injury but was anxious and crying with chest pain and right-hand side lateral neck pain “sharp”, “burning pain to right hand side of lateral neck.”
[9] Page 19 of the insurer’s bundle.
The Police report[10] notes the speed limit was five kms per hour, that vehicle one (a Holden) was being driven at 3 kms per hour, vehicle two (a Corolla) was driven by the claimant at 10 kms, and that vehicle three (a Jeep), was not moving at all. The claimant was reversed into and pushed into the third vehicle.
[10] Page 24 of the insurer’s bundle.
The hospital discharge summary[11] notes the claimant was involved in a car accident described as “low speed coming out of the parking lot when someone just reversed in front of her, and she went into the back of the truck.” The hospital suggests the car was a write off, but states no airbags were deployed. The x-ray undertaken at the hospital noted severe foraminal stenosis but no soft tissue swelling.
[11] Page 46 of the claimant’s bundle.
The hospital notes also record:
(a)    no midline cervical spine tenderness;
(b)    right sided paravertebral tenderness;
(c)    range of motion exercises intact;
(d)    no seat belt marks, and
(e)    whiplash injury to the neck, no other injuries identified.
The GP records of the Nyngan medical practice where the claimant attended commence on 16 March 2021 and end on 21 February 2022. These include the following entries:
(a)    16 March 2021 – stiff neck, car accident Thursday, has got worse since then. No pins and needles in hands or arms, not dropping things. On examination there was almost no flexion, extension or rotation. The claimant was sent for an X-ray and prescribed Panadeine Forte;
(b)    30 March 2021 – ongoing severe neck pain taking Panadeine Forte, “no significant radiculopathy symptoms but says pain does go down to right shoulder”. An MRI was arranged;
(c)    21 April 2021 – MRI results discussed ongoing severe neck pain and radiating down to right upper arm, a referral to Dr Tait was given;
(d)    16 June 2021 – severe stenosis spinal canal – saw specialist 8 June 2021, waiting for insurer to approve;
(e)    13 July 2021 – claimant reported the specialist said she was not to work at all, and she had ongoing issues with pain not responding to simple analgesia. Panadeine Forte was prescribed;
(f)    16 August 2021 – still waiting for neurosurgery and was taking Panadeine Forte occasionally;
(g)    24 September 2021 – still waiting for insurer to approve surgery – Centrelink medical certificate was given;
(h)    7 October 2021 – insurer had refused and wished the claimant to trial physiotherapy and a referral was written;
(i)    9 November 2021 – awaiting approval for physiotherapy;
(j)    30 November 2021 – the claimant had seen the physio twice with no improvement in her neck pain and has an occasional headache. She wanted to try an anti-inflammatory and was prescribed Celebrex;
(k)    14 December 2021 – Dr Cheah prescribed Panadeine Forte and suggested she get a second opinion;
(l)    20 December 2021 Dr Cheah wrote a further referral for a neurosurgeon for further review and possible surgery;
(m)     21 February 2022, the claimant wanted to discuss the disability pension and was supported by the neurosurgeon. The doctor noted that the insurer was still deciding on surgery. Panadeine Forte was prescribed.
The insurer provided an updated bundle from Bogan Shire Medical Centre which record multiple attendances for certificates of capacity, ongoing pain in the neck and referrals for physiotherapy and specialist intervention and prescriptions for pain medication.

Specialist and Allied Health reports and records

Dr Di Ieva, neurosurgeon from Macquarie Neurosurgery in Sydney wrote to Dr Cheah of the Bogan Shire practice on 8 June 2021. He says the claimant had an unremarkable medical history until a “motor bike accident” on 11 March 2021. The claimant apparently told him that before the surgery she had “some minimal chronic cervical pian” but that after the motor bike accident it got worse with headache and radiating pain particularly in the right arm. She reported paraesthesia radiating to the thumb index and middle fingers on the right side and she was sometimes dropping things. He noted three level discopathy “most likely worsened after the recent motorbike accident.” He suggested surgery.
Dr Di Ieva wrote again on 2 February 2022. He clarifies that his letter of 8 June 2021 contained an error in respect of the suggestion she had a motor bike accident. He notes it was a car accident. He reconfirms the recommendation for surgery and says he would follow up with the insurer. The claimant said she was unable to work, and he supported this.
Dr Di Ieva wrote to the claimant’s solicitor in a letter dated 30 March 2022. He confirms he has seen her multiple times and due to “clear neurological findings” has offered her a three-level anterior cervical discectomy and fusion.
He refers to severe cervical pain with multi radicular radiation into the arms and generalised weakness which was limiting the quality of her life. While he acknowledges Ms Kearns canal stenosis and discopathy is severe he said it has been “eventually worsened” after the accident.
He also refers to the lack of benefit from conservative treatment including physiotherapy and that the claimant’s sleep has been affected.
Dr Di Ieva acknowledges discopathy and stenosis are common features in the general population, but he says he has a history that she had no symptoms and pain before the accident. Therefore, he says the accident was a “substantial contributing factor to the injury” due to hyperflexion and hyperextension of the neck.
The insurer asked Dr Di Ieva whether the treatment was “reasonably necessary.” The Panel notes this is the workers compensation test and not the test in the motor accidents legislation (reasonable and necessary). The doctor confirms the nature of the surgery he proposed and that she may require a posterior laminectomy and fusion if the first operation did not succeed. He again notes that on the basis of a history of there being no previous symptoms, the treatment was reasonable and necessary.
On 17 December 2021, Ms Jacobs, physiotherapist noted her treatment was slow to commence (16 November 2021) and that the claimant had neck pain with headaches and pain travelling into her hands and her sleep was affected. Ms Jacobs reports[12] reduced range of motion in the neck.
[12] Page 38 of the claimant’s bundle.
Ms Jacobs says that progress has been slow, “there is some fear-avoidance taking place, understandably as treatment and advice/education was delayed.” She recommended pain management and a referral back to Dr Di Ieva.
A second report from Ms Jacobs dated 28 January 2022[13] says the claimant has continued to attend physiotherapy and continues to experience pain in particular at nighttime. She has headaches and pain radiating to the left hand. Ms Jacobs suggests range of motion and quality has improved marginally. She recommends continued physiotherapy.
[13] Page 39 of the claimant’s bundle.

Radiology

On 15 April 2021 the claimant had an MRI of her cervical spine[14]. It is noted there was no available study for comparison. The clinical reasons for the study were said to be, “severe neck pain”. The report says “no acute abnormality has been demonstrated. There are multilevel degenerative changes. There is bilateral severe C5-6 and C6-7 foraminal stenosis. There is moderate C6-7 canal stenosis.”
[14] Page 44 of the claimant’s bundle.

RE-EXAMINATION FINDINGS

The claimant attended a telehealth assessment with Medical Assessors Gorman and Stubbs. Ms Kearns was unaccompanied in the Service NSW telehealth suite in Dubbo, NSW.

History provided by the claimant

Pre-accident medical history and relevant personal details

Ms Kearns is 63 years of age. She has three children aged 40, 45 and 47 years. She has grandchildren.
She smokes around two cigarettes per day and drinks two to three rum and cokes per day.
She had worked as a cleaner but had stopped work before the subject accident because of a shoulder injury. She had surgery on the shoulder four years ago. She was in a sling for eight weeks. She said she has had a good result. She denied having any neck pain associated with the shoulder injury.
She is now on the Disability Support Pension.
She said that she did not have any symptoms in her cervical spine or lumbar spine before the accident. She was taken through the various medical records. She did not recall complaining of neck pain in 2014, 2015 or 2018 but did not say the records were incorrect. She did not recall having a cervical spine CT scan in 2014. She was certain that she had never had any cervical spine injections at any time before the accident.

History of the motor accident, symptoms and treatment

Ms Kearns said that on the 11 March 2021 she was leaving the Big W car park in Dubbo and a reversing car collied with her car. Ms Kearns said her car was not drivable, had to be towed and was written off. While she was a bit vague, she said she had only had the car for two years old.
Ms Kearns said she had immediate neck pain. Her daughter came to town and drove her back to Nyngan where she was living. She had physiotherapy.
Her pain continued and she was referred for an MRI of the cervical spine which showed significant degenerative disease. She saw Professor Antonio Di Ieva in Dubbo. He suggested that she needed a three-level anterior cervical discectomy and fusion – if this did not relieve her symptoms her proposed a subsequent posterior decompression laminectomy. This is the procedure the subject of the current dispute. The claimant has not sought to have the procedure as a public patient.
She was also referred to Dr Deshpande, a Pain Specialist in Orange, NSW. She suggested spinal injections, but these also have not occurred.
The claimant said she has had no subsequent accidents or developed any additional conditions.

Current symptoms

Mrs Kearns reported pain in the cervical spine radiating down the right arm. Her neck is stiff. She said that some days the pain is unbearable. Her neck aches if she stands for too long and she cannot drive as she cannot turn her head. She uses an airer as she cannot hang her clothes on the clothesline due to increasing neck pain.

Current and proposed treatment

She continues on the following medications:
(a)    Panadeine Forte 6 per day;
(b)    Endone 4 per day;
(c)    sleeping tablets – she was not sure of the name, and
(d)    blood pressure tablets – she was not sure of the name.
Ms Kearns was still having physiotherapy every two weeks paid for by her insurer.
The claimant said she would have an operation if it was funded by the insurer. She did not want the surgery as a public patient.

Clinical examination

As this was a telehealth assessment for the purposes of taking a history from the claimant, a physical examination could not take place.
She reported that her height was 5 feet and her weight 78kg.
The Panel noted that Ms Kearns sat with her head laterally flexed to the right – she stated that it was most comfortable there.
There was marked reduction in cervical spine range of motion with asymmetry of all movements.
Rotation to the right was to approximately one quarter normal and to the left even less – one fifth normal. Flexion was minimal – around one fifth normal. Extension was to one quarter normal.
She could elevate both shoulders but only to horizontal (90 degrees) and no further due to pain.

Comments on consistency

Ms Kearns said her memory was that she did not have any cervical spinal symptoms before the subject accident. She would not resile from this belief. However, there was evidence of neck pain in 2014, 2015 and 2018 although there was no evidence that it was investigated or treated with spinal injections (as suggested by Medical Assessor Nair).

CONSIDERATION OF THE ISSUES

The Panel had advised the parties that it would be considering the following issues:
(a)    the nature of the cervical injury caused by the accident;
(b)    whether the treatment proposed “relates to” that injury, and
(c)    if the answer to that question is yes, whether the treatment proposed is reasonable and necessary in the circumstances.

What injury did the accident cause to Ms Kearn’ neck?

The insurer is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine what injuries were caused by the accident before determining whether the treatment relates to those injuries.
The MRI of 15 April 2021 showed multilevel degenerative changes including moderate canal stenosis at C6/7 and severe foraminal stenosis at C5/6 and C6/7. The accident did not cause these degenerative changes. There is no evidence of structural changes to the spine such as fractures or dislocations after the accident.
Ambulance records suggest Ms Kearns denied a cervical spine injury, but she is reported as having right sided neck pain which was sharp and burning. Hospital records document no midline cervical spine tenderness but tenderness on the right side. She was diagnosed with a whiplash. Thereafter Ms Kearns complained of severe and persisting neck pain and stiffness which was investigated, and opioid medication was prescribed at times.
While the motor vehicle accident has been reported by Police as occurring at relatively low speed, Ms Kearns said there was considerable damage to her car which she said was written off (the hospital records also suggest the car was written off). The Panel has no property damage report forms or photographs which might assist.
The Panel notes that the GP records show that the claimant had some previous neck problems. The Medical Assessors are of the view that therefore Ms Kearns had a somewhat vulnerable spine, more susceptible to injury than the general population.
It is the clinical judgment of the medical members of the Panel that the claimant sustained a soft tissue injury to her cervical spine on a background of significant degenerative changes which were not, at the time of the accident, symptomatic.

Is the surgery related to injuries caused by the accident?

Proceedings concerning treatment disputes do not concern the assessment of whole person impairment therefore the provisions about causation of impairment in the AMA4 Guides and Chapter 6 of the Motor Accident Guidelines (the Guidelines) do not determine the issue currently before the Panel.
The Panel notes the decision of Phillips where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents (and where the Motor Accidents Compensation Act 1999 applied[15]). The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to “the injury caused by the motor accident”.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[15] The provisions in that Act are very similar terms to that of s 3.24 of the MAI Act.

The Panel is of the view that while Phillips concerned the previous scheme, as the wording of the test for causation in the legislation is similar, the principles of that case should be followed in this claim.
The claimant denies any previous neck symptoms. She does not recall seeing her doctors for neck pain in 2014, 2015 and 2018. The Panel cannot accept the claimant’s evidence on this point, she is clearly mistaken. The medical records from two different practices cannot both be wrong and wrong in several entries. The Panel is satisfied that the claimant has had neck symptoms in the past which were not significant. However, the Panel notes there is no evidence before us of radiological investigations or injections being provided and no evidence of any allied health treatment, such as physiotherapy) associated with these previous episodes.
The medical members of the Panel are of the view that, on the basis of the medical records, these episodes of previous neck pain were exacerbations of the underlying degenerative condition which did not persist. The Panel notes that between these episodes and after 2018, the claimant continued to work including likely arduous work as a cleaner. There is no evidence in 2019, 2020 or before March 2021 of any neck symptoms or complaints in any of the records put before the Panel.
It is the clinical judgment of the medical members of the Panel that the motor accident of March 2021 caused a significant aggravation of the underlying degenerative condition which has continued.
The Panel is therefore satisfied that the accident has made a material contribution to the need for the surgery. The Panel is also of the view that but for the accident, the claimant would not have needed the surgery recommended by Dr Di Iema in June 2021.

Reasonable and necessary

In order for the insurer to be liable to pay for the treatment, the claimant must also establish that the treatment is “reasonable and necessary in the circumstances”. This test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”. There have been few judicial pronouncements concerning treatment disputes.
In Diab v NRMA Ltd[16] at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a)    the appropriateness of the treatment in dispute;
(b)    the availability of alternative treatment;
(c)    the cost effectiveness of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the appropriateness of the treatment.
[16] [2014] NSWWCCPD 72.
While related to a different scheme and another test, the Panel considers these observations are relevant to the Panel’s decision of whether Ms Kearns’ surgery is “reasonable and necessary”.
Professor Di Ieva saw the claimant on 15 June 2021, three months after the accident. He noted her pain and recorded paraesthesia in the index and middle fingers on the right side. He refers to radicular symptoms and weakness. Because of the severity of the pain and the spinal and foraminal stenosis, he proposed discectomy and fusion surgery.
The Panel accepts that this was appropriate surgery to relieve the claimant’s severe pain. The Panel notes that it is three years since that surgery was first proposed and the claimant has had in the meantime pursued conservative treatment including pain management, physiotherapy and she has been prescribed medication all of which have been of temporary help only.
The medical members of the Panel note that the surgery is likely to be effective in reducing the claimant’s symptoms including her symptoms of pain.
The Panel notes the quote from Dr Di Iema in June 2021 was over $15,000 for the surgery he proposed. While that is a significant sum of money, the treatment in dispute is likely to resolve or reduce the claimant’s symptoms thereby minimising ongoing expenditure on other treatments.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant in the proceedings before the Panel.
Ms Kerns’ circumstances are that she had a pre-existing condition which rendered her spine vulnerable. She has had an accident and has developed symptoms. These symptoms have continued. Her treating doctors have recommended surgery, and she wishes to have it.
Applying the criteria of Diab, the Panel is satisfied that the proposed surgery is reasonable and necessary in the circumstances.

CONCLUSION

The Panel is satisfied that the surgery proposed by Dr Di Ieva, as clarified in his report of

22 March 2022, being a three-level anterior cervical discectomy and fusion is related to the injury to the claimant’s neck caused by the accident and is reasonable and necessary in the circumstances.

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Citations

Kearns v Allianz Australia Insurance Limited [2024] NSWPICMP 559

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710

Diab v NRMA Ltd [2014] NSWWCCPD 72

[2024] NSWPICMP 559

12 August 2024