Kotb v AAI Limited t/as GIO
[2023] NSWPICMP 312
•4 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kotb v AAI Limited t/as GIO [2023] NSWPICMP 312 |
| CLAIMANT: | Hanadi Kotb |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 4 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 10 October 2020 in a rear-end collision; the dispute related to the assessment of threshold injury and treatment and care; claimant re-examined; significant pre-existing history of cervical lumbar spine pain; findings made that claimant suffered threshold injuries; findings made on treatment disputes on “reasonable and necessary”; discussion of the Motor Accident Injuries Amendment Act 2022; repeal of clause 2(c) of Schedule 2 without associated saving provision; no power of review panel to determine dispute pertaining to “recovery”; Held – assessment of threshold injury confirmed; treatment and care certificate revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 18 August 2022. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 18 August 2022 and issues a new certificate determining that: The following treatment and care: · request for a TENS machine; · request for a whole body bone scan; · request for a consultation with Dr Frederik Joshua, rheumatologist; IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · further physiotherapy, IS NOT REASONABLE AND NECESSARY in the circumstances. Medical Assessment – Recovery Review Panel Assessment of Recovery Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel has no power to determine the issue of recovery. |
REASONS
BACKGROUND
Ms Hanadi Kotb (the claimant) suffered injury in a motor accident on 10 October 2020 (the motor accident) when she was a front seat passenger struck by the insured vehicle from behind. After the impact the vehicle swerved to the left but did not result in any secondary collision.[1]
[1] Claimant’s bundle, p 19.
The claimant alleges that the motor accident caused injuries to the cervical, thoracic and lumbar spine and right hip.
The insurer is liable to pay to Ms Kotb any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute is whether Ms Kotb’s injury is classified as a “threshold injury” within the meaning of the MAI Act and whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances for the purposes of section 3.24” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
Whether the treatment was caused by the motor accident was not included in the referral.
The specific treatment disputes relate to:
- request for a TENS machine;
- request for a whole body bone scan;
- request for a consultation with Dr Frederik Joshua, rheumatologist, and
- further physiotherapy.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act” and “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)”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks[3] if “the person’s only injuries resulting from the motor accident were threshold injuries”[4]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[3] For motor accidents occurring prior to 1 April 2023.
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 18 August 2022 (the assessment). Medical Assessor Home concluded that Ms Kotb sustained injuries which were a minor injury within the meaning of the MAI Act.
The Medical Assessor concluded that the claimant suffered soft tissue injuries to the cervical, thoracic and lumbar spines with no clinical signs of radiculopathy. It was held that the accident did not cause a left-sided annulus fissure or disc protrusion due to an absence of early symptoms of the left-sided low back pain and referred symptoms to the left leg. The Medical Assessor concluded that there was no right hip injury, and the symptoms were referred pain from the lumbar spine.
The Medical Assessor concluded that use of a TENS machine was reasonable and necessary but would not improve recovery, a referral to a rheumatologist was both reasonable and necessary, causatively related to the motor accident and would improve recovery and further physiotherapy is not reasonable and necessary nor would it improve recovery.
The Medical Assessor concluded that the request for a whole-body scan was reasonable and necessary. He noted that it had been undertaken and the results did not assist in recovery.
AMENDMENTS TO MINOR INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Ms Kotb within 28 days after the parties were issued with the medical assessment.The President’s delegate referred the medical assessment 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 7.26(5) of the MAI Act; claimant’s bundle, p 4.
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[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] 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.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
As part of the review, the Panel advised the parties that it had received a 471-page bundle from the claimant and sought confirmation from the parties of whether there was any further material and what issues were in dispute.
The claimant advised she had no further material and stated:
“We confirm that the following treatment and care is to be re-assessed:
• The request for a TENS machine;
• The request for a whole body bone scan;
• The request for a consultation with Dr Frederik Joshua, Rheumatologist; and
• Further Physiotherapy
We confirm that the following injuries are to be re-assessed:
• Cervical spine
• Thoracic spine
• Lumbar spine”
The insurer advised that it relied on its submissions dated 7 October 2022 and that all other relevant material it relied upon had been included in the claimant’s bundle.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Within these reasons we have referred to either a soft tissue injury or threshold injury interchangeably, although the latter is a wider concept as it also includes a threshold psychological or psychiatric injury.
Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines applies to determinations occurring on or after 1 April 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[11]
[11] Clause 5.9 of the Guidelines.
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. The section 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 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks for motor accidents occurring before 1 April 2023 where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12]
SUBMISSIONS
Claimant’s submissions undated[13]
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] Claimant’s bundle, p 10.
These submissions were filed seeking a review of the Medical Certificate.
The claimant asserted that pursuant to David v Allianz Insurance[14] the Medical Assessor is required to consider all relevel records but failed to consider:
- physiotherapy clinical notes;
- Hurstville Medical Centre clinical notes, and
- MRI scan dated 18 February 2021.
[14] [2021] NSWPICMP 227 at [50].
The claimant referred to the eggshell skull rule and submitted that the claimant is more susceptible to injuries. Ms Nguyen made a diagnosis of cervical whiplash and noted low back pain. Dr Rozario reported on 3 February 2022 that there was chronic cervical and lumbar pain which resulted from foraminal stenosis, and the claimant should be reviewed by a neurosurgeon.
It was submitted that the findings on the scan dated 18 February 2021 were caused by the motor accident and there was no other reasonable explanation.
The claimant referred to clinical signs of reduced sensibility [sic sensation?] in Dr Phang’s report dated 6 January 2021 which raised the possibility of sacroiliitis.
The claimant emphasised that radiculopathy can be present at any time and submitted that it was shown “during various clinical assessments” such as the physiotherapy clinical notes and the reports of the general practitioner.
In relation to the thoracic spine the claimant referred to the pathology shown in the MRI scan to the lumbar and lumbar/sacra joint.
In relation to the lumbar spine, the claimant referred to the constant pain and does not explain why this was defined as a minor injury.
The claimant submitted that there was a right hip injury evidenced by the clinical notes of Dr Zhang who provided contemporaneous reports of right hip pain. Reference was also made to the findings in the X-ray conducted on 12 November 2020.
The claimant submitted that ongoing physiotherapy was supported by Dr Rosario in the clinical notes dated 3 February 2022 because injections and simple analgesia had not assisted.
The claimant submitted that considering the ongoing pain, a TENS machine serves to reduce pain and improve recovery.
Insurer’s submissions dated 6 August 2021[15]
[15] Claimant’s bundle, p 38.
The insurer submitted that there was insufficient clinical basis for treatment by a rheumatologist in circumstances where the claimant sustained soft tissue injuries.
The insurer noted that the claimant had received 17 sessions of physiotherapy between December 2020 and May 2021 and that these sessions should have been adequate in providing a home exercise program. It submitted that the extent of any ongoing neck and shoulder problems was questionable, and any ongoing treatment was not reasonable and necessary and would not promote recovery.
The insurer submitted that a bone scan was not relevant to the injuries sustained by the claimant, and it was unlikely to alter the cause of any treatment.
Insurer’s submissions dated 7 October 2022[16]
[16] Document R1 in the portal.
These submissions opposed the application to review the assessment.
After referring to the various legislation, the insurer noted that there was no anatomical distribution for “muscle weakness” and this did not satisfy cl 6.8 of the Guidelines. Furthermore, the claimant did not otherwise refer to a second clinical sign of radiculopathy.
The Medical Assessor did not find any signs of radiculopathy.
The insurer submitted that the Medical Assessor found that the references in the MRI scan were normal and in keeping with widespread osteoarthritic change.
The insurer noted that the claimant’s reference to complaints of pain was obscure and had little or no diagnostic value as a sign of injury. There were no concordant clinical signs of radiculopathy including the absence of early left-sided symptoms. The Medical Assessor otherwise explained why the right hip was not injured.
Contrary to the claimant’s submissions, the Medical Assessor is not required to identify alternative treatment or provide treatment plans.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The Allied health recovery request referred to pre-existing neck, low back and right shoulder pain.[17]
[17] Claimant’s bundle, p 55.
A 2013 CT scan of the lumbar spine showed prominent osteophytes and disc material at L5/S1 compromising the left S1 nerve root.[18]
[18] Claimant’s bundle, p 372.
The clinical notes of Hurstville City Medical Centre (Dr Wong) refer to cervical and lumbo- sacral disc disease in 2015.[19]
[19] Claimant’s bundle, p 95.
In a report dated 18 February 2015, Dr Loretta Rozario, rheumatologist noted longstanding history of chronic pain in the cervical spine radiating into the left arm and left leg and occasional paraesthesia in the hands. Symptoms were described as deteriorating.[20] The CT scan of the lumbar spine dated 19 March 2013 showed prominent osteophytes and disc material at L5/S1 with possible left S1 nerve compression. The doctor otherwise noted an absent left ankle jerk.
[20] Claimant’s bundle, p 241.
In May 2015 Dr Rozario referred to a CT of the lumbar spine which showed disc material at L5/S1 with compression of the left S1 nerve root and a scan of the cervical spine which showed disc disease at C5/6.[21]
[21] Claimant’s bundle, p 253.
A further report dated 31 March 2016 from Dr Rozario noted injections were not required in the neck or low back due to improved symptoms.[22] Pain was noted in the thoracolumbar region, left greater than right and intermittently in the right shoulder/neck.[23]
[22] Claimant’s bundle, p 324.
[23] Claimant’s bundle, p 252.
On 30 August 2017 Dr Rozario noted the claimant was awaiting the MRI scan of the cervical and lumbar spine and that there was pain in the groin and right thigh.[24]
[24] Claimant’s bundle, p 255.
In 2017 the general practitioner (GP) was prescribing Endone for chronic low back pain. MS Contin was prescribed in January 2018.[25]
[25] Claimant’s bundle, p 327.
A CT scan of the cervical spine showed significant narrowing at C4/5 and C5/6 with potential neural compromise.[26]
[26] Claimant’s bundle, p 380.
On 8 January 2018 Dr Rozario noted three-month history of cervical spine radiating into the right shoulder with numbness in the right hand.[27] The doctor opined that the claimant had cervical spondylosis and supraspinatus tendinitis.
[27] Claimant’s bundle, p 259.
In February 2018 the physiotherapist noted the claimant was suffering from low back and neck pain.[28]
[28] Claimant’s bundle, p 260.
On 8 May 2018 Dr Rozario noted recent MRI scans showed significant foraminal narrowing at C4/5 and C5/6 and disc protrusions at L2/3 and L5/S1.[29]
[29] Claimant’s bundle, p 263.
Nerve conduction studies in December 2018 showed median nerve dysfunction at the wrist bilaterally.[30]
[30] Claimant’s bundle, p 264.
Endone was prescribed by the GP in late 2018 in the context of ongoing low back pain.[31]
[31] Claimant’s bundle, p 334.
In September 2019 the physiotherapist noted neck and shoulder pain.[32] In February 2020 the physiotherapist treated the claimant for low back pain.[33]
[32] Claimant’s bundle, p 270.
[33] Claimant’s bundle, p 273.
In March 2020 the GP noted polyarthralgia for the neck, shoulder elbow and wrist.[34] Endone was prescribed in June 2020 in the context of low back pain.[35]
[34] Claimant’s bundle, p 346.
[35] Claimant’s bundle, p 348.
On 16 September 2020, the consultation immediately preceding the motor accident, the claimant was prescribed Endone by the GP.[36]
[36] Claimant’s bundle, p 351.
Post-accident medical evidence
The clinical note of the GP dated 14 October 2020[37] referred to lower rib pain and tenderness over T12/L1.
[37] Claimant’s bundle, p 351.
On 15 October 2020 the GP noted right hip pain and referred the claimant for plain X-rays of the hip and pelvis.[38]
[38] Claimant’s bundle, p 352.
The X-ray of the right hip and pelvis showed no fracture or dislocation and was described as unremarkable. There was sclerosis involving the pubis and in the right sacroiliac joint raising the possibility of sacroiliitis.[39]
[39] Claimant’s bundle, p 396.
On 17 November 2020 the GP recorded ongoing right back pain and occipital and neck pain.[40] .
[40] Claimant’s bundle, p 352.
A clinical note dated 18 December 2020 referred to left neck pain, right lower back and hip. The notes stated:[41]
“2010 disc prolapse; 2015 cervical neck and lumbar disc pathology”.
[41] Claimant’s bundle, p 105. These appear to be the notes of the physiotherapist.
The notes refer to a “right hip musculoskeletal injury”. The symptoms are repeated in subsequent clinical notes.[42]
[42] Claimant’s bundle, pp 106-107.
On 6 January 2021 the GP noted bilateral hip pain which was initially on the right side and “lately has had some left side hip pain”.[43] The GP noted that the November X-ray noted the possibility of sacroiliitis.
[43] Claimant’s bundle, p 355.
On 24 March 2021 the physiotherapist referred to an aggravation yesterday whilst bending down to pick something up.[44] The GP also noted the aggravation at that time with “no radiculopathy”.[45]
[44] Claimant’s bundle, pp 119.
[45] Claimant’s bundle, p 358.
An Allied health recovery request dated 18 January 2021 contained a clinical assessment of cervical whiplash injury, right hip musculoskeletal injury and lower back facet locking.[46] The current signs and symptoms noted head and neck pain and sharp low back pain (9.5/10).
[46] Claimant’s bundle, p 54.
An MRI scan of the thoracolumbar spine dated 18 February 2021 noted tenderness at T8 to L1.[47] The scan showed discopathy at L2/3 and L5/S1 with annular tear at L5/S contacting the left S1 nerve root.
[47] Claimant’s bundle, p 69.
An Allied health recovery request dated 23 February 2021 is in similar terms to the previous request and sought ongoing physiotherapy.[48] A further request dated 26 March 2021 sought a further eight sessions of physiotherapy, a back brace and a TENS machine.
[48] Claimant’s bundle, p 73.
A short report from the GP dated 24 March 2021 noted ongoing upper and lower back pain with partial response from physiotherapy and that the provision of a TENS machine may benefit.[49]
[49] Claimant’s bundle, p 42.
A report from Workplace physiotherapy dated 27 April 2021 noted 17 sessions of physiotherapy had been provided with limited progression. A further two sessions was approved to achieve optimal gains.[50]
[50] Claimant’s bundle, p 89.
On 20 May 2021 the GP requested ongoing physiotherapy treatment, assessment of chronic pain by a rheumatologist for chronic neck and shoulder pain.[51]
[51] Claimant’s bundle, p 90.
A bone scan dated 28 May 2021 showed uptake consistent with arthroplasty in a variety of parts including the shoulder joints and at C3/4, C5/6 T11/12, L2/3 and L4/5.[52]
[52] Claimant’s bundle, p 128.
On 3 February 2022 Dr Rozario opined that the chronic cervical and low back pain was due to severe foraminal stenosis.[53]
[53] Claimant’s bundle, p 401.
Claim form
Ms Kotb completed a claim form dated 3 November 2020[54] which asserted injuries to the neck, back, right top side and right hip. The back and neck were described as pre-existing illnesses.
[54] Claimant’s bundle, p 44.
The certificate of capacity attached to the claim form dated 3 November 2020 referred to a provisional diagnosis of soft tissue injury to the thoracic and lumbar spine.[55]
[55] Claimant’s bundle, p 48.
Statement
The claimant provided a statement dated 16 June 2021[56] noting that prior to the motor accident she had back and neck pain and was treated by painkillers, physiotherapy and referral to Dr Rozario, rheumatologist.
[56] Claimant’s bundle, p 18.
The claimant referred to the motor accident when she suffered immediate pain to the neck and back, right hip and both shoulders. The claimant also received chest pain which worsened over the following week. The right hip pain was radiating to the knee.
In a report dated 22 July 2021, Dr Gertler, psychiatrist, noted neck and back pain and intermittent right hip pain and diagnosed an adjustment disorder with depressed mood.
Other Medical Assessment
Medical Assessor Hong found that the motor accident caused a benzodiazepine use disorder and driving phobia which was not a minor injury.[57]
[57] Claimnat’s bundle, p 30.
RE-EXAMINATION
The claimant was examined by Medical Assessor Berry on 19 June 2023. The examination report is as follows:
“Mrs Kotb attended today with an Arabic interpreter, however her English was fluent and the interpreter was not needed.
The claimant told me that she was 55 years of age and she is dominantly right handed. Mrs Kotb was not working at the time of the accident as she is the carer for her husband who is on a Disability Pension.
Mrs Kotb told me that she came to Australia in 1973. She completed her schooling to Year 10 and worked as a cook for a period. The claimant and her husband owned and ran shops and then she worked as a professional cleaner. Mrs Kotb is a married woman with six children and they currently live in a double storey house.
The claimant told me that she had suffered from neck and back pain for a least five to six years. As far as she could recall there was no history of injury. She was under the care of Dr Rozario, Rheumatologist and also Dr Conn. She was given injections into the neck which were of variable benefit. At the time of the motor accident on 10 October 2020, her pain was low grade but was aggravated by the accident.
Mrs Kotb told me that she was a front seat passenger wearing a seatbelt in a Hyundai sedan driven by her husband. They were returning from Punchbowl where they had been shopping for food. The claimant was suddenly aware of a loud bang and was thrown about in the vehicle and was shaken and dazed. She told me that the car spun out of control and onto the footpath and she and her husband were able to self-extricate. As far as I could determine, the airbags did not deploy. The claimant told me that her husband was able to drive the vehicle home which was only a short distance and the vehicle was subsequently taken away and written off.
Mrs Kotb was aware of a degree of neck and back pain that night and also across the shoulders particularly the right shoulder. She told me that over the next two weeks the pain in the neck, back and right shoulder became increasingly severe. The claimant then attended Dr Wong, her general practitioner and X-rays were performed. She was sent for physiotherapy and when this did not help, scans were ordered but these were not done at that time.
Current Symptoms
Mrs Kotb told me today that she has pain in the neck, mainly on the right side. She has pain which varies from the right arm to the left arm and when the pain is present her hand will swell. She told me that for the last two days the pain had been spreading down the left arm and the left arm was clearly erithemic and swollen compared to the right. The claimant told me that she continues to suffer back pain which varies in intensity, and she has difficulty walking down stairs. She told me that she is unable to hold a vacuum and has to get one of her children to do the vacuuming.
Current Treatment
The claimant told me today that she is having physiotherapy on a weekly basis. She uses a hot pack on her back and on her right shoulder. She will take Panadol Osteo and Nurofen as required.
Previous Injury
The claimant told me that she had no previous accidents, injuries or claims for settlement and she was quite frank about her previous neck and back pain.
Physical Examination
Mrs Kotb was a short woman being 150cm in height and 89kgs in weight.
Cervical Spine
The claimant was tender in the right side of the neck and in the posterior aspect of both shoulders. She demonstrated a full range of flexion, extension, rotation and lateral flexion. There was no muscle spasm and no alteration of spinal contour. Reflexes were intact. Sensation and power was normal showing a normal neurological examination.
Upper Extremities
The claimant refused to lift either arm above 90 degrees. Adduction and extension were to 50 degrees. Internal and external rotation were to 60 degrees. Measurement of the upper arms 10cm above the olecranon, was 30cm on each side and the forearms 10cm below the olecranon, were 20cm. The right hand was said by the claimant to be swollen. However, I did not find a great difference between the two hands. The claimant was able to demonstrate a full range of wrist, thumb and finger movements in both hands.
Thoracolumbar Spine
The claimant demonstrated two thirds of the normal range of flexion, a third of the normal range of extension and half the normal range of rotation. Neurological exmaination was normal.
Lower Extremities
Reflexes were brisk and equal. There were no sensory changes, no unilateral muscle wasting and no nerve root tension sign. This was a normal neurological examination.
No other examination was conducted. The claimant indicated that she had had no new investigations.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
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[58] and Insurance Australia Ltd v Marsh.[59]
[58] [2021] NSWCA 287 at [40], [41] and [45].
[59] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[60] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[60] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[61] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[61] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Berry and adds the following reasons.
Lumbar spine injury
The claimant has a chronic history of low back pain with treatment which included narcotic analgesia. There is significant lumbar spine pathology at L5/S1 identified in 2013[62] with gradual deterioration over time.
[62] Claimant’s bundle, p 372.
Following the motor accident there were no left leg radicular symptoms. We agree with the previous medical opinion that the motor accident was unlikely to have caused or aggravated a left-sided annulus fissure or disc protrusion due to an absence of early symptoms of the left-sided low back pain and referred symptoms to the left leg.
The low back is protected by the seat in the motor accident. It is medically plausible that the claimant sustained a soft tissue injury to the lumbar spine which would have resolved within months. The ongoing nature of the lumbar spine complaints represents the progressive degenerative condition.
No medical practitioner has otherwise identified two objective signs of radiculopathy.
We are satisfied that the claimant sustained a short-term exacerbation of the lumbar spine which falls within the definition of a threshold injury.
Thoracic spine injury
Contrary to the claimant’s submissions, the MRI scan does not show disc injury to the thoracic spine. The relevant disc identified on the scan by the claimant is the L5/S1 disc which is not in the thoracic spine. That pathology was present in 2013.
There is a mention to lower rib pain and tenderness over T12/L1 on 14 October 2020[63] and then an absence of reference to thoracic spine in the following months. We accept that the motor accident may have caused a soft tissue injury which resolved within a short period of time. Otherwise there is no evidence of radiculopathy in the thoracic spine and no evidence of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. We are satisfied that the claimant sustained soft tissue injury to the thoracic spine which falls within the definition of a threshold injury.
[63] Claimant’s bundle, p 351.
Cervical injury
The pre-accident records show longstanding changes in the cervical spine, chronic complaints of cervical symptoms with radicular features. There were no initial recorded complaints of cervical spine pain following the motor accident although they are mentioned in the clinical consultation one month after the motor accident. The cervical spine was otherwise reference as injury when the claim form was completed on 3 November 2020.
It is medically plausible that the motor accident could have caused a whiplash type injury to the cervical spine.
There is a chronic history of cervical spine pain with prior complaint of radicular features. Reliant on the claimant’s history, we accept that the motor accident probably exacerbated underlying symptoms in the cervical spine.
We do not accept and cannot identify any cervical spine injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. There is otherwise no evidence of objective signs of radiculopathy in the cervical spine.
Right hip
Contrary to the claimant’s submission, the post-accident x-ray did not show injury to the right hip. The X-ray showed pathology in the pubic and sacro-iliac regions which is not the right hip. The identified pathology is degenerative as it is longstanding and otherwise cannot be explained by the motor accident.
The claimant was a front seat passenger. There is no recorded history that the right hip struck anything during the motor accident. We otherwise note that there were no complaints of right hip symptoms to Medical Assessor Berry.
There is no plausible mechanism that the motor accident caused a right hip injury. However, we accept that there were early complaints of right hip symptoms which were probably referred symptoms from the low back. Like the original Medical Assessor, we do not accept that the motor accident caused a right hip injury.
Reasonable and necessary in the circumstances
Ms Hanadi 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[64], Grove J stated:[65]
“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.”
[64] [2003] NSWCA 52 (Clampett).
[65] 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.[66]
[66] 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.[67] 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.
[67] 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”.
We do not accept that further physiotherapy sessions are “necessary”. We note the limited benefit from previous physiotherapy sessions and agree with the insurer’s submission that these sessions should have been adequate in providing a home exercise program.
The claimant otherwise requested a whole-body scan, referral to a Rheumatologist, and the provision of a TENS machine.
The parties’ submissions confused the issues of “reasonable and necessary” with “causation”. All these treatments are “reasonable and necessary” to treat the claimant’s underlying health conditions as they are inexpensive and medically appropriate treatment for the claimant’s underlying health conditions.
Recovery
Section 3.28(3) extends the 26 week period due to certain matters including where the treatment “will improve the recovery of the injured person” was repealed by the MAI Amendment Act.[68] The sub-section is saved for motor accidents occurring before the date of the commencement (1 April 2023).[69]
[68] Sch 1, cl [23].
[69] See Application of amendments at Sch 1, cl [53] under “Provisions consequent on enactment of Motor Accident Injuries Amendment Act 2022”.
A medical assessment matter is defined in Schedule 2, cl 2 of the MAI Act and previously included (at cl 2(c)) where treatment will “improve the recovery of the injured person”. Clause 2(c) provided:
“… whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care provided to an injured person will improve the recovery of the injured person”.
Clause 2(c) of Sch 2 was repealed by the MAI Amendment Act[70] and has not been saved as a transitional provision.
[70] Sch 1, cl [47].
The medical dispute for recovery that has been determined by a Medical Assessor but is subject to review is no longer a medical dispute due to the repeal of Sch 2, cl 2(c). The review provisions no longer apply to that former category of medical disputes.
We received and appreciated the prompt response from the parties in response to the Panel’s Direction that, in light of the amendments, whether we had “power to review the issue of ‘recovery’”.
The claimant’s submissions did not address that issue.
The insurer noted that an amendment made by the MAI Amendment Act “extends to proceedings pending before the Commission”.[71] It submitted that it followed that “the Commission” no longer has power to determine a dispute on the issue of whether treatment or care will improve the recovery.
[71] Sch 4, Part 7, cl 14 of the MAI Act.
It is unnecessary to address whether the Commission, through a Member, has power to address this issue. Medical disputes on “recovery” that have not been determined by a Medical Assessor may, arguably, be determined by a Member under the “catch all clause” (Sch 2, cl 3(n)).
For these brief reasons we have determined that the Panel no longer has power to determine on review a dispute pertaining to recovery.
CONCLUSION
For these reasons the Panel concludes that the certificate of minor injury is confirmed. The certificate for treatment and care is revoked. A replacement certificate is attached at the commencement of these Reasons.
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