Lovric v Allianz Australia Insurance Limited
[2023] NSWPICMP 679
•19 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Lovric v Allianz Australia Insurance Limited [2023] NSWPICMP 679 |
| CLAIMANT: | Srdjana Lovric |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 19 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; assessment of treatment and care; causation; significant postural changes since motor vehicle accident; secondary injuries not related to the accident; claimant did not suffer injury to hip or knee in motor vehicle accident; basis on which proposed treatment is a condition arising; nexus between injury suffered and need for treatment; reasonable and necessary; absence of any material to support claimant’s contention; Held – certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment The Review Panel confirms the Certificate dated 24 July 2023. |
STATEMENT OF REASONS
INTRODUCTION
Srdjana Lovric (the claimant) is a 37-year-old woman who, on 12 March 2020, sustained injuries when the vehicle she was driving was struck from behind by another vehicle.
The claimant lodged an Application for Personal Injury Benefits dated 9 April 2020 and, thereafter, sought approval from the insurer to undergo an MRI scan of her right knee and an ultrasound scan of her right hip. The requesting practitioner was Dr Atranjan Jhajj. Both imaging requests were made on 4 March 2022. In respect to the request for the ultrasound of the right hip he noted “r hip pain, car accident effecting cervical spine. Significant postural changes since”. In relation to the request for an MRI of the right knee he notes:
“Crepitus felt on passive movement.
Pain on knee extension, normal flexion until extremes
Anterior
and posterior draw tests negative
McMurray – pain on internal rotation
?meniscal tear”
In reply to the request for the treatment the insurer declined to meet the cost of the treatment. The insurer submitted that the proposed scans are not causally related to the subject accident and not reasonable and necessary treatment.
The claimant requested the insurer conduct an internal review of the original decision dated 16 March 2022. On 25 March 2022 the insurer confirmed that they would not cover the cost of a right knee MRI scan and a right hip ultrasound scan. Thereafter the claimant lodged and application in respect to the treatment review. The claimant was examined by Medical Assessor Farhan Shahzad on 27 March 2023 who issued a Certificate on 24 July 2023 certifying that the proposed treatment does not relate to the injury caused by the accident and that such treatment is not reasonable and necessary in the circumstances.
The claimant sought a review of the Certificate, and in a Certificate dated 16 August 2023 the President’s delegate, Sophie Jones, determined that Medical Assessor Shahzad failed to provide adequate reasoning as to why he did not believe the claimant’s secondary injuries are related to the accident and accordingly referred the matter to the Review Panel.
The Review Panel met by a Teams meeting on 16 October 2023 at which time further material was requested including the Application and the Reply lodged by the parties. Additionally, the parties were advised that it was the Panel’s view that re-examination of the claimant is not required and if there were to be any submissions seeking that the claimant be examined these were to be lodged by 3 November 2023.
This material has now been provided. Additionally, both the claimant and the insurer consent to the matter being reviewed without a further examination of the claimant.
BACKGROUND
The claimant is a 37-year-old woman who was involved in a motor vehicle accident which occurred on 12 March 2020. She was the driver of a stationary vehicle when the insured’s vehicle struck the rear of the vehicle which she was driving. Following the accident, the claimant complained of an injury to her neck and back. There was no complaint of an injury either to the right hip or the right knee. The medical material deals with the diagnosis of the injuries to the claimant’s cervical, thoracic and lumbar spine.
Superimposed on this treatment was the claimant’s pregnancy during the last months of 2020 and the birth of her third child in 2021.
The claimant’s general practitioner only referred the claimant for scans to the right hip and right knee in March 2022 some 2 years post-accident. Prior to this the report of Dr Murray Hyde Page dated 18 February 2022 noted:
“in the past 6-9 months she has developed some right hip pain shooting down towards the right knee.”
His examination noted:
“some irritability around her right hip but a full range of movement”.
Dr Murray Hyde Page’s report also notes:
“on 8/07/2019 the claimant complained of pregnancy-r groin and hip pain”.
The submissions made on behalf of the claimant did not seek to establish that the claimant suffered an injury to her hip or knee in the motor vehicle accident. What is put is that the alleged error made by Assessor Shahzad was that he did not provide adequate reasoning as to why he did not believe that the claimant’s secondary injuries are related to the accident. That is the claimant has developed secondary injuries which require further investigations. The claimant asserts she suffered injuries to her right hip and right knee.
SECONDARY INJURY
The material does not disclose any means by which a secondary injury could have developed. The report of Dr Bokhari dated 21 March 2022, noting that the claimant had not consulted this general practitioner since 12/2/2021 makes no note of any injury other than the neck and back injury. It notes that the claimant developed numbness and tingling to her right arm. It is the claimant that bears the onus in establishing the basis for the development of her right hip and right knee injury. Whilst there are extensive notes and reports of neck and back pain there is nothing which addresses in any meaningful or specific way, how such injuries could have led to the onset of a right hip or right knee condition such as would require an MRI to the right knee and an ultrasound scan to the right hip.
The guidelines set out in the AMIA Act clause cl 6.5-6.7 outline the test and approach which ought to be taken in ascertaining as to whether or not a condition was caused or materially contributed to by the motor accident. What is required is some basis upon which the proposed condition is a consequence of a secondary injury which is arising from injuries sustained in the motor vehicle accident. It must be established that there is a nexus between the injuries suffered and the need for treatment. In this case there is a need to establish that a nexus between the cervical, thoracic and lumbar spinal injuries complained of by the claimant and the development of a hip and knee condition consequent on these injuries. Put simply, there is no material that established this necessary relationship. That is, there is nothing in the material to establish that specific treatment relates to the injury caused by the motor accident.
This is required even before the question as to whether or not the treatment is reasonable and necessary ought to be considered. This is a separate test which has at its heart an established nexus between the injuries sustained in the motor vehicle accident and the proposed treatment. If that nexus is established, then the factors to be considered include the appropriateness of the medical treatment and the effectiveness of such treatment.
As the Panel does not consider the injuries to the right hip and right knee to be consequential on the motor vehicle accident it follows that the treatment cannot be considered reasonable and necessary. There is no material to suggest that the injuries sustained in the motor vehicle accident caused secondary injuries which would give rise for a need for treatment to body parts which were not injured in the motor vehicle accident. That is, there is nothing to suggest that the onset of the hip and knee conditions arises from the motor vehicle accident.
It is clearly not sufficient that the referring treating practitioner Dr Ajajj in simply referring the claimant for an MRI scan of the right knee makes no reference whatsoever to the motor vehicle accident. He notes:
“Simply crepitus, pain on knee extension, pain on internal rotation and ? meniscal tear.”
Absent any other material suggesting that this was a condition with the claimant’s postural changes or altered gait could have contributed to it the need for this treatment cannot be considered to have caused by the motor vehicle accident.
The referral to the ultrasound right hip notes:
“r hip pain, car accident effecting cervical spine. Significant postural changes since (CTP)”
A simple assertion that a car accident affecting the cervical, thoracic and lumbar spine and therefore has led to postural changes since the accident is not sufficiently probative to give rise to a find that the cervical spine, leading to some type of “significant postural changes” in turn has caused the onset of right hip pain such as to warrant further investigation.
In any event not only is there no material to support a correlation between the two but the only material which does address it, being the report of Dr Murray Hyde Page, does not suggest postural changes but rather notes:
“She had normal thoracolumbar spine and there was some mild irritability around her right hip.”
The only other material which addresses it, which contraindicates any postural changes as being the root of any hip condition is also noted in the report of Dr Murray Hyde Page where he states:
“In the past nine months she had developed some right hip pain shooting down towards the knee”.
CONCLUSION
On consideration of all the material, and rather noting the absence of any material to support the claimant’s contention of a secondary right hip or right knee injury, the Panel is not satisfied that the motor vehicle accident caused or contributed to the development of a right hip or right knee condition such as would require the proposed diagnostic investigations.
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