Luk v AAI Limited t/as GIO
[2023] NSWPICMP 669
•12 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Luk v AAI Limited t/as GIO [2023] NSWPICMP 669 |
| CLAIMANT: | Ka Wai (Steven) Luk |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 12 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor Home dated 22 February 2022; dispute involving earning capacity and reasonable and necessary treatment; claimant involved in accident on 30 July 2018 injuring cervical spine, lumbar spine, both feet, both knees, both legs, both shoulders and thoracic spine; claimant accepted the Medical Assessors (MA) decision on earning capacity but disputed his decision going to reasonable and necessary care; insurer relied on surveillance evidence but Panel not satisfied that this supported the insurer’s submissions claimant examined by the Panel and Panel satisfied that the claimant did have a loss of earning capacity and did have a reasonable and necessary need for surgery by way of a discectomy fusion at the L5/S1 level and that the claimant should undergo physiotherapy but the Panel was not satisfied that the claimant had a need for surgery of his cervical spine at the C5/C6 and C6/C7 levels; Held – decision of MA Home revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Home dated 22 February 2022. 2. The Panel finds that the claimant has an earning capacity of 30 hours per week 3. The Panel finds that the request for surgery by Dr Pope, dated 18 December 2019, for C5/6 and C6/7 anterior cervical discectomy fusion is not reasonable and necessary in the circumstances. 4. The Panel finds that the request by Dr Pope, dated 18 December 2019, for L5/S1 discectomy fusion is reasonable and necessary in the circumstances. 5. The Panel finds that the request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances. 6. The Panel finds that the request by Complete Allied Health Care dated 16 November 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary' in the circumstances. 7. The Panel finds that the request by Complete Allied Health Care dated 24 December 2019 for a walking stick is reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of a certificate and reasons of Medical Assessor Home (the Medical Assessor) dated 22 February 2022.
The claimant had sought an assessment going to his degree of impairment of earning capacity and whether certain treatment and care was reasonable and necessary.
The following treatment and/or care disputes were referred by the Personal Injury Commission for assessment:
a) Whether the request by Dr Raoul Pope, treating neurosurgeon dated 18 December 2019 for C5/6 and C6/7 anterior cervical discectomy fusion and L5/S1 discectomy fusion is reasonable and necessary in the circumstances.
b) Whether the request by Complete Allied Health Care dated 24 December 2019 for a walking stick is reasonable and necessary in the circumstances.
c) Whether the request by Complete Allied Health Care dated 16 November 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary' in the circumstances.
d) Whether the request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances.
The Medical Assessor had found;
a.The claimant does have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.
b.The following treatment and care:
i.The request by Dr Raoul Pope, treating neurosurgeon dated 18 December 2019 for C5/6 and C6/7 anterior cervical discectomy fusion and L5/S1 discectomy fusion.
ii.The request by Complete Allied Health Care dated 24 December 2019 for a walking stick.
iii.The request by Complete Allied Health Care dated 16 November 2019 for eight sessions of physiotherapy and any associated costs.
iv.The request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs.
Is not reasonable and necessary in the circumstances.
Injuries to be assessed
a)Cervical spine - discogenic injury
b)Lumbar spine - large disc herniation with Sl nerve root compromise & L4/5 disc herniation
c)Injury to both feet
d)Injury to both knees
e)Injury to both legs
f)Injury to both shoulders
g)Injury to thoracic spine
An earning capacity dispute was referred by the Personal Injury Commission for
assessment in light of the following injuries:
a)Cervical spine - discogenic injury
b)Lumbar spine - large disc herniation with Sl nerve root compromise & L4/5 disc herniation
c)Injury to both feet
d)Injury to both knees
e)Injury to both legs
f)Injury to both shoulders
g)Injury to thoracic spine
The Medical Assessor found that the claimant was fit to undertake work 30 hours per week, that is, six hours, five days per week on balance. He found that the claimant was fit for his normal pre-accident work as an accountant within those hours of work. The Medical Assessor said that the claimant’s capacity for work was affected by his perception of pain and his requirement for postural breaks. The Medical Assessor found that the temporary impairment to earning capacity was likely to be permanent however there may be some improvement in capacity over time with further work hardening. The Medical Assessor did not find that the nature of the injury was such as to change materially in the foreseeable in the future.
The claimant accepts the decision of the Medical Assessor regarding the earning capacity dispute and makes no review application or submissions about that. The insurer also has not addressed this point. The Medical Assessor found that there was a degree of impairment of earning capacity.
The accident
The claimant was injured in a motor accident on 30 July 2018.
10.The claimant was a front seat passenger in a car that was stationary in the M5 tunnel. A truck failed to stop in time and collided with the rear of the claimants car. The air bags were not deployed. An ambulance attended the accident, but this was primarily to attend to the driver of the car in which the claimant was travelling.
11.The claimant informed Medical Assessor Perla that he was thrown forwards and backwards in the cabin of the car.
12.The claimant was taken to St George Hospital. He was assessed and discharged the same day.
Claimant’s submissions
13.The claimant submits that the Medical Assessor’s assessment of whether the following treatment and care were reasonable and necessary was incorrect concerning the following: -
a)Whether the request by Dr Raoul Pope, treating neurosurgeon dated 18 December 2019 C5/6 and C6/7 anterior cervical discectomy fusion and L5/S1 discectomy fusion is reasonable and necessary in the circumstances.
b)Whether the request by Complete Allied Health Care dated 24 December 2019 for a walking stick is reasonable and necessary in the circumstances.
c)Whether the request by Complete Allied Health Care dated 16 November 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances.
d)Whether the request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances.
14.It is submitted the Medical Assessor had failed to follow the Motor Accident Guidelines Version 8.1 ('the Guidelines') when conducting the assessment.
15.The claimant submits the Medical Assessor was in error by incorrectly applying the Guidelines and failed to make a correct assessment on treatment that is reasonable and necessary.
16.By way of background, the claimant says;
a.On or about 21 October 2019, the claimant had requested the insurer to approve Complete Allied Health Care’s (CAHC) request for eight sessions of physiotherapy and any associated costs. On 28 December 2019 this request was denied by the insurer.
b.On or about 16 November 2019, the claimant had requested the insurer to approve CAHC’s request for eight sessions of physiotherapy and any associated costs. On 28 December 2019 this request was denied by the insurer.
c.On 5 December 2019, the claimant lodged an Application for Internal Review requesting a review of the insurer’s decisions about the requests in a) and b) herein.
d.On 16 January 2020, the insurer issued its Certificate of Determination- Internal Review and its Statement of Reasons – Internal Review affirming and maintaining denial of the requests in a) and b) herein.
17.The claimant says that applying the State Insurance Regulatory Authority (SIRA) guidelines for the criteria for determining what is “reasonable and necessary” treatment, it is necessary to consider if the treatment is: -
a) directly related to the injuries sustained in the motor vehicle accident
b) aimed at helping the injured person get back to their usual activities
c) appropriate for the type of injury
d) provided by an appropriately qualified health professional
e) cost effective
18.The claimant says that the request for treatment was made in between the period of October to December 2019.
19.The claimant says that the insurer’s internal review decision of continuing to maintain their denial of treatment was made between the period of January to April 2020.
20.The claimant says that the Medical Assessor has made a determination of what is “reasonable and necessary” as of the date of assessment on 17 February 2022.
21.The claimant submits the Assessor’s approach in coming to his determination is incorrect.
22.The claimant says that the Medical Assessor has considered whether the referred treatment was “reasonable and necessary” at the time of his assessment. The claimant says that this determination comes after more than 2 years in which it was referred and denied. The claimant submits that this approach is incorrect.
23.The claimant submits that the Medical Assessor should be considering whether the treatment was “reasonable and necessary” at the time the treatment was referred and at the time it was denied by the insurer.
24.The claimant says that the Medical Assessor has in his determination distinguished what he may have assessed if the assessment was conducted earlier, which has led to the claimant now submitting the adoption made by the Medical Assessor was incorrect.
25.The claimant reiterates the medical dispute has arisen as a result of the insurer’s determination that the treatment “is not reasonable and necessary”.
26.The claimant says that if the Medical Assessor was to consider whether treatment is “reasonable and necessary” at the time of the assessment (that is, post 2 years), this will defeat the purpose of a medical dispute as it would be counter-intuitive.
27. The claimant uses the example of the “walking stick” which was an aid to assist the claimant in walking/standing which was denied by the insurer at the time. The claimant however, submits that if the claimant’s condition has now improved and he no longer requires the walking stick, the consideration of the Assessor’s determination should be the medical dispute at the time of requirement (when the treatment was referred) and not at the time of the assessment. The claimant says that the same principle and analogy should also apply to the other treatments in dispute’
28.By way of reiteration, the claimant submits that the Medical Assessor should have made a decision at the time the treatment was referred and denied and not whether it is presently required at the time of his assessment.
Background to dispute
Dispute 1
29.On 21 October 2019, Complete Allied Health Care (CAHC) requested 8 sessions of physiotherapy treatment and associated costs for the claimant.
30.On 28 October 2019, the insurer informed the claimant that the request was denied because the request was unreasonable and unnecessary.
31.On 29 October 2019 the claimant lodged an internal review application.
32.On 16 January 2020, the insurer informed the claimant that it maintained its decision of the denial decision and permitted the claimant to proceed with a Dispute Resolution Service (DRS) application.
33.This dispute is in relation to whether CAHC's requested 8 sessions of physiotherapy treatment to the injured person are 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) of the Act.
34.This application is made in accordance with sections 2(b) and 3{n) of Schedule 2 of the Motor Accidents Injuries Act 2017.
Dispute 2
35.On 25 November 2019, the insurer informed the Claimant that he had part and full earning capacity since 17 October 2019.
36.On 5 December 2019 the claimant lodged an internal review application on behalf of the Claimant.
37.On 20 February 2020, the insurer informed the claimant that it maintained its decision and permitted the claimant to proceed with Dispute Resolution Service application.
38.This dispute is in relation to the degree of impairment of the earning capacity of an injured person that has resulted from the injury caused by the motor accident.
39.This application is made in accordance with sections 2(d) of Schedule 2 of the Act.
Dispute 3
40.On 16 November 2019 CAHC requested 8 sessions of physiotherapy treatment and associated costs for the claimant.
41.On 25 November 2019, the insurer informed the claimant that the request was denied because the request was unreasonable and unnecessary.
42.On 5 December 2019 the claimant lodged an internal review application..
43.On 16 January 2020, the insurer informed the claimant that it maintained its decision of the denial decision and permitted the Claimant to proceed with DRS application.
Dispute 4
44.This dispute is in relation to whether CAHC's requested 8 sessions of physiotherapy treatment to the claimant are reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 of the Act.
45.This application is made in accordance with sections 2(b) and 3(n) of Schedule 2 of the Act.
Dispute 5
46.On 16 January 2020 the Claimant requested the insurer to approve for the costs of an interpreter to interpret the outcome of the internal reviews to him in Cantonese.
47.On 20 January 2020, the insurer informed the claimant that the request was denied with no explanation.
48.On 24 January 2020 the claimant lodged an internal review application.
49.On 31 January 2020, the insurer informed the claimant that it declined to conduct a review.
50.This dispute is in relation to access to interpreting services as an issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in Schedule 2 of the Act. The claimant submits that the Act has not specified access to interpreters for claimants who speak English as a second language. However, access to language interpreters is a liability for a claim that the insurer must acknowledge.
51.This application is made in accordance with sections 3(n) of Schedule 2 of the Act 2017.
Dispute 6
52.On 24 December 2019, CAHC requested a walking stick for the claimant.
53.On 02 January 2020 the insurer informed the claimant that the request was denied because the request was unreasonable and unnecessary.
54.On 24 January 2020 the claimant lodged an internal review.
55.The claimant says that as at 4 March 2020, the insurer had failed to conduct a review when he believed that the insurer was required to do so.
56.This dispute is in relation to whether CAHC's requested walking stick to the injured person was reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 of the Act.
57.This application is made in accordance with sections 2(b) of Schedule 2 of the Motor Accidents Injuries Act 2017.
Dispute 7:
58.On 18 December 2019 Dr Pope (treating neurosurgeon) requested a C5/6 and C6/7 ACDF and Fusion and an LS/S1 Discectomy for the claimant.
59.On 27 December 2019 the insurer informed the claimant that the request was denied because the request was unreasonable and unnecessary.
On 24 January 2020 the claimant lodged an internal review application.
60.The claimant says that as at 4 March 2020 , the insurer has failed to conduct a review.
61.This dispute is in relation to whether Dr Pope's requested CS/6 and C6/7 ACDF and Fusion and LS/S1 Discectomy to the claimant are reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 of the Act.
62.This application is made in accordance with sections 2{b) of Schedule 2 of the Motor Accidents Injuries Act 2017.
Insurers submissions
63.The Insurer submits that there is no indication that the Medical Assessor was not correct in a material respect in regard to both the treatment and the minor injury assessment. The insurer says further, that this application has been brought without merit. The Panel notes that it has not been referred any minor injury assessment.
64.The insurer submits that there is no indication that the Medical Assessor failed to consider the mechanism of the injury, treatment, history and documentation before him. The insurer says that the Medical Assessor specifically noted that he considered the submissions of both parties and the documentation before him.
65.The insurer submits that the Medical Assessor relied on his clinical expertise, setting out a clear path of reasoning in support of the diagnosis and subsequent determination.
66.The insurer submits that the claimant’s contentions are merely a difference of opinion to that of the qualified Medical Assessor, and, essentially, have no merit. The insurer submits that a difference of opinion does not in any way constitute a material error.
67.The insurer submits that the Medial Assessor provided a detailed determination with respect to causation and reasons. The insurer notes that the Medical Assessor provided a clear path of reasoning between the mechanism of the accident, the nature of the injury, and the claimant’s presentation on assessment. The insurer says that the Medical Assessor undertook a comprehensive, thorough assessment and proffered his diagnosis in accordance with this.
68.The insurer says that essentially, the Medical Assessor was best placed to make the determination pertaining to the diagnosis given the plethora of evidence before him and the Insurer submits there is no indication throughout the certificate that the Medical Assessor was incorrect in a material respect. The insurer says that it is also abundantly clear to the insurer that the Medical Assessor noted his consideration of the medical evidence and the information therein.
69.The Insurer submits that the Medical Assessor’s medical assessment certificate, with reference to the Motor Accident Injuries Act 2017, the Motor Accident Guidelines, and the Regulation was not incorrect in a material respect and therefore the matter should not be referred to a Review Panel.
Medical evidence
70.The Discharge Summary from St George Hospital, 30 July 2018 records the claimant being brought in by ambulance following a rear end motor vehicle crash in the M5 tunnel. The claimant self-extricated and was walking at the scene of the accident.
71.Initially the claimant was reported without pain or symptoms. Subsequently he developed mild pain to both calves and the sacral region.
72.At the examination, regarding his neck there was no midline or bony tenderness or deformities. With his back there was no midline tenderness to
palpation. The claimant did have mild pain in the paravertebral musculature of the sacral region. There were no bony abnormalities. He was discharged home requiring analgesia.
73.Personal Injury Claim Form dated 20 August 2018 refers to the mechanism of the accident with injuries reported as neck, lower back and right shoulder.
74.The Certificates of Capacity prepared by Dr Lam commencing 2 August 2018 refer to diagnosis as lumbar spine - query discogenic injury, cervical spine -query discogenic, right shoulder- query rotator cuff.
75.Clinical notes of Alliance Medical Health Care Centre in Lidcombe document prior history of low back pain treated with chiropractic care recorded 9 January 2017. Previous MRI scanning of the neck indicated a fatty lesion on the left side of the neck.
76.The motor vehicle accident is first recorded on 2 August 2018 with complaints of neck pain, severe lower back pain, restricted lumbar spine motion, bilateral calf pain and tenderness, generalised tightness. Further complaints in the right shoulder with impingement.
77.There is a subsequent referral to Dr Siu and Dr Pope.
78.The physiotherapy notes from Allianz Medical Physiotherapy commence in October 2018 document complaints of whiplash Grade 2, right shoulder tendinosis at the supraspinatus with mild subacromial bursitis and a disc protrusion at L5/S1 with S1 root compression. There was a positive left-sided slump test recorded with symptoms of paraesthesia in the left leg. Mild pain in the right shoulder with end range motion. Restricted neck motion was reported. Walking was capacity up to one kilometre, lifting capacity five kilograms with both arms, sitting and driving to 30 minutes.
79.Dr Pope provided a report of 23 January 2019 to Dr Lam, the claimant’s general practitioner (GP), and said; I last reviewed him on the 2 January 2019, we were looking at the lower back pain, left lower limb pain, neck pain, left upper limb pain and numbness for6 months from a motor vehicle accident.
The MRI of the cervical spine showed severe foraminal stenosis at C5/6 and C6/7 on the left side consistent with disc herniations. There wascord impingement but no myelomalacic change at the C5/6 level.
He has ongoing symptoms of left upper and lower limb radiculopathies. He has entered into chronic pain syndrome and chronic denervation.
I feel an operation in the form of a 2 level anterior cervical discectorny and fusion would be reasonable. Another option would be a 2 level foraminotomy but that has a higher chance of needing further surgery if those discs degenerate over time. An anterior approach will give a more robust long-term benefit as well as short intermediate benefits.
He has ongoing symptoms of left upper and lower limb radiculopathies. He has entered into chronic pain syndrome and chronic denervation.
I feel an operation in the form of a 2 level anterior cervical discectorny and fusion would be reasonable. Another option would be a 2 level foraminotomy but that has a higher chance of needing further surgery if those discs degenerate over time. An anterior approach will give a more robust long-term benefit as well as short intermediate benefits.80.Dr Siu, the claimants treating neurosurgeon, provided a report to Dr Lam of 26 September 2018 and said; I think Mr Luk’s pain is contributed by irritation of his L5/S1 disc herniation seen from MRI. Given the onset and the mechanism related to his motor vehicle accident, the disc herniation appears to be directly caused by the impact. I think given the severe, persistent nature of his pain, it would be reasonable to consider surgical decompression to at least alleviate is sciatic component of his pain.
81.Dr Keller, in his report to the insurer, of 25 October 2019, noted a pre-existing medical history as follows; From the medical records provided I note that on the 09.01.17 he was seen for ongoing lower back pain but it improved with chiropractic treatments since last year. On the 07.09.17 he was seen for musculoskeletal pain and was suspected as having cervical radiculopathy affecting the left upper limb. He was referred for an MRI. On the 11.09.17 he had an MRI of the cervical spine showing multilevel spondylosis. On the 13.10.17 he had an MRI of the cervical spine showing no cervical spine pathology. This information suggests that Mr Luk has had long standing complaints affecting his neck and lower back.
82.Medical Assessor Perla provided a certificate of 11 June 2019. He found that the claimant had suffered injuries caused by the accident to his neck and right shoulder were threshold injuries.
83.Medical Assessor Perla also found that an injury to the claimant’s lower back was a non-threshold injury and was caused by the accident.
84.By way of past history, Medical Assessor Perla noted that 3 years previously, the claimant experienced the onset of some low back pain. He recalls he saw Dr Lam, his GP. He attended a chiropractor he thought for some 2 or 3 sessions and his condition then resolved.
85.Medical Assessor Perla commented that in September 2017, prior to the accident, the claimant reported that he was aware of some neck pain. He was referred for an MRI scan of the cervical spine which showed, multilevel cervical spine spondylotic changes. There it was found that there was a heterogeneous but predominantly hyperintense T2 signal focus in the area medial to the posterior aspect of the right levator scapulae. An ultrasound was recommended.
86.Medical Assessor Perla reported that the claimant did proceed with the ultrasound of the neck which reported possible interfacial fat. A further evaluation with a follow up MRI was recommended. Medical Assessor Perla understood that this was not undertaken. The claimant stated that his neck pain resolved.
87.The insurer has also relied on a report of Dr Coroneos dated 17 March 2022.
88.The claimant attended the accident with the aid of a walking stick. This was the same day that he was later observed to walk freely and without the assistance of a walking stick but informed Medical Assessor Home that he had taken analgesics to relieve his pain.
89.Dr Coroneos commented that the medical records referred to right lower limb symptoms and right lower limb weakness. He said that this would suggest that the MRI lumbar spine findings, in particular the right L5/S1 broad based annular bulge with desiccation, was spondylotic and not symptomatic. The claimants GP had made contemporaneous records in respect of the right lower limb symptoms and neurological findings. Dr Coroneos said that if the lesion was caused by the subject accident then there would have been left sided S1 distribution symptoms and signs, none of which have been documented by the claimant’s GP, Dr Lam. Dr Coroneos said that this was also confirmed in the clinical history section of the request for an MRI lumbar spine scan where there was no reference to any left S1 lower limb symptoms or signs by Dr Lam to the radiologist at spectrum imaging,
90.Dr Coroneos said that the claimant’s condition was not consistent with having been caused by any neurosurgical injuries from the accident. He said there was no evidence of any significant neurosurgical or spinal injury having occurred either clinically or radiologically. Further, he said that the GP records do not document any evidence of any significant neurosurgical or spinal injury having occurred in the contemporaneous medical records provided.
91.Dr Coroneos said that the changes in the claimants cervical and lumbar spine are all of cervical and lumbar spondylosis. It was his opinion that the neurological presentation in respect to the left lower limb related to long-standing broad based central left paracentral annular bulging displacing the left S1 nerve root, not caused by the accident.
92.He said that the contemporaneous medical records from Dr Lam did not refer to left lower limb symptoms but rather to right lower limb symptoms.
93.Dr Coroneos said that all changes on imaging of the cervical spine and lumbar spine are all of spondylosis and are not caused by the accident. He said that he could not determine why there was a request for lumbar spine surgery in the absence of sciatica (leg pain) and no analgesia.
94.Dr Coroneos said that there was no requirement for any future neurosurgical treatment as there was no evidence of any significant neurosurgical or spinal surgery having occurred. He said that there was no indication for C5/6 and C6/7 ACDF (anterior cervical discectomy and fusion) as advised by Dr Pope. Dr Coroneos said that this was because all the changes on the imaging were of cervical spondylosis and the claimant does not present with any fracture dislocation, subluxation, radiculopathy or myelopathy and that to perform such surgery would be regarded as inappropriate.
95.Dr Coroneos said that in respect of the lumbar spine, the changes were of lumbar spondylosis and he believed that this was an unrelated condition, not caused by the accident he referred to the contemporaneous records of Dr Lam which he said are detailed and thorough after the accident and which made no reference to any findings that would be consistent with a left S1 radiculopathy. He also referred to the clinical history given to the radiologist by Dr Lam.
96.The Medical Assessor saw the claimant for assessment on 17 February 2022.
97.The claimant said that he had made a full recovery from right shoulder pain.
98.The claimant said that his neck pain had also improved and he was only troubled by this about once a month.
99.The claimant complained of constant low back pain which was usually more severe on the left side. He said that he had a maximum walking tolerance of one hour and a sitting tolerance of 90 minutes with a similar tolerance for driving.
100.The claimant said that he had largely discarded the use of a walking stick about 12 months previously. He said that he was trying to strengthen his left leg by reducing dependence on the walking stick. The claimant informed the medical assessor that he rarely uses a walking stick for longer trips.
Medical Assessors summary of some of the medical evidence
101.In relation to the proposed C5/6 and C6/7 anterior cervical discectomy and fusion, the insurer submits that when the claimant left St George Hospital after the accident, the claimant had been diagnosed with a minor strain due to the accident.
102.The insurer sets out that Dr Perla, DRS Assessor. diagnosed the claimant in 2019 with a non-specific mechanical neck pain consistent with a soft tissue injury with no evidence of radiculopathy.
103.It is submitted that Dr Keller in October 2019 noted that the claimant had long-standing complaints affecting the claimant’s neck and on examination, noted that the claimant’s cervical spine range of motion was reduced and that the claimant reported a reduced sensation in all fingers of the left hand. Dr Keller did not make a formal diagnosis of a neck injury.
104.Dr Coroneos, in March 2020 was of the opinion that the changes in the claimant’s cervical spine were due to spondylosis and not related to the accident. Dr Coroneos believed that the claimant may have experienced cervical soft tissue strain caused by the subject motor vehicle accident from a neurosurgical perspective, the effects of which had ceased.
105.On 23 January 2019, Dr Pope provided a report discussing the MRI scans of the cervical spine.
106.Contrary to Dr Pope’s opinion with regard to the surgery, Dr Coroneos said there was no indication for a C5/6 and C6/7 ACDF as all the changes on imaging were of cervical spondylosis and that the claimant did not present with any fracture, dislocation, subluxation, radiculopathy or myelopathy. He said that to perform such surgery would be regarded as inappropriate.
107.However, as has been noted, the claimant did have ongoing and persistent signs of radiculopathy at the L5/S1 level which had been noted by several examiners. Dr Coroneos is not correct in this respect
Surveillance of claimant
108.The insurer has provided a video surveillance report of the claimant undertaken on 5 March 2020. This is from Pro Care Group and is dated 12 March 2020. The Panel has seen the report but not the film.
109.The report details the claimant first noted to be entering a taxi, and in the process, using a walking stick. He also uses a walking stick while apparently proceeding to a medical appointment that same day. Later that same day, after the medical examination, the claimant is observed near an open car boot. He is reported to lift some luggage, including a soft bodied hessian case. Then the claimant is observed leaning into the back of a car rearranging luggage items. He was observed to walk briskly and evenly. In the entirety of this process, the claimant was not observed to use a walking stick. He apparently demonstrated no pain behaviour. The claimant was also observed to semi-flex his back.
110.The Medical Assessor said that he discussed the surveillance with the claimant. In response to this the claimant said that he was taking strong medication prior to undertaking the observed activities. The claimant reported to the Medical Assessor “that he would only use his walking stick when walking over long distance”. The claimant said that he does not require his walking stick walking to and from the car to his home. Whilst the Medical Assessor had the advantage of reviewing the surveillance video tape, this was not made available to the Panel.
Medical examination
111.The claimant was medically examined by Medical Assessor Moloney on behalf of the Panel. His report follows.
Mr Luk attended the medical suites at PIC. He was unaccompanied except for an interpreter, Mr Pang Kwong Woo, NAATI no. CPN 30N78E who was present throughout the interview and examination.
Pre-accident history
Mr Luk stated that he migrated to Australia in 2009. He had been working as an accountant in Australia since then. At the time of the accident ,he was living with a de facto partner but had no children. The partner has since returned to Hong Kong. He states that he had had no injuries to those assessed today prior to the accident. Mr Luk was working full-time as an accountant at the time of the accident.History of the accident
Mr Luk was a front seat passenger in a car driven by his wife when a truck struck them from the rear in the M5 tunnel. He was wearing a seatbelt at the time. He was able to get out of the car but was taken by ambulance to St George Hospital. Initially he had pain in the neck, right shoulder, low back and left shin.
History of symptoms and treatment following the accident
Mr Luk was discharged from St George Hospital on the same day and later attended his GP, Dr Lam who organised an MRI scan of his cervical and lumbar spines and referred him for physiotherapy and hydrotherapy. He states this treatment gave a brief benefit.
His GP then referred him to a neurosurgeon, Dr Siu who subsequently suggested surgical management of his lumbar spine. Mr Luk requested a 2nd opinion and consulted another neurosurgeon Dr Pope. Dr Pope also suggested surgery to his lumbar spine and cervical spine. However, Mr Luk is worried about potential side-effects of the surgery and has decided to pursue conservative management.
Details of any subsequent injuries or conditions sustained since the motor accident
Mr Luk states that he was a driver involved in a minor car accident, 2 years ago when he was hit from the rear. He states that there was a slight dent in the bumper bar and no injury sustained himself.Current symptoms
There is constant low back pain which radiates to his left leg. This increases with sitting and he states it is more comfortable when tilting to the right side with more pressure on the right buttock. He also states that when he stands he prefers to place more weight on the right leg. He gets cramps in the left calf which is relieved by lying down. There is an anterior pain in the left knee which increases with walking up and down stairs. There was a decrease in sensation in the distal sole of his left. More recently, he gets low back pain on the right side but no referral of the right leg.
He feels that there was stiffness in the cervical spine on the right with decreased rotation to the right but no pain. He states that his arms and shoulders are asymptomatic.
Mr Luk states that he can walk normally but if he is walking for more than 1 km, he prefers to use a walking stick as he is frightened of tripping over.
Mr Luk states that he has developed slight incontinence, 2 to 3 times per day which started a few months after the accident. He also stated that occasionally, he has bedwetting at night and his GP told him that he would need a cystoscopy.
At present, he works 4 days a week for 4 hours a day and drives 40 minutes each way to work. He continues to work in his previous employment as an accountant. At present he lives with a nephew and another friend in a townhouse. He states that his friend does most of the cooking and housework but he does some work around the house.Current and proposed treatment
Present medication is Voltaren 50 mg a day for slight pain and he increases this to 150 mg a day when the pain is severe. He takes 4 to 6 Panadol day and Lyrica 50 mg 3 times a day. No manual therapy is being undertaken at present and he consults his GP when necessary. He expressed interest in seeing a neurosurgeon again about his lumbar spine. He is not considering any surgery for the cervical spine. Dr Pope told him that he may have missed the opportune time for the lumbar surgery.
Radiology
Mr Luk stated that he had an MRI repeat of the lumbar spine in December 2022. This was due to the development of right-sided lumbar back pain which had been of sudden onset 3 months prior to this MRI. No report was available all films to inspect.Clinical examination
Mr Luk walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was measured at 167 cm and weight 90 kg.
Cervical spine
On testing range of movement, flexion/extension were within normal limits, side bending to the left with 90% of expected range and side bending to the right with 70% of expected range. Rotation to the left was 80% of expected range and rotation to the right with 70% of expected range. On palpation there was no tenderness or guarding noted.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power and no sensory changes. No muscle wasting was apparent with the circumference of the upper arms 29.5 cm on the right and 29 cm on the left (10 cm above the olecranon process) and at the maximum circumference of the forearm 26 cm bilaterally.
Shoulders
There was a full pain free active range of movement of both shoulders with no tenderness on palpation and no crepitus on passive movement. Impingement tests were negative.
Thoracic spine
On testing range of movement, flexion/extension and rotation and side bending were all 80% of expected range with no asymmetry. On palpation, there was no guarding or spasm or tenderness and no signs of radiculopathy or non-verifiable radicular complaints.
Lumbar spine
Mr Luk walked with a normal gait but was unsteady trying to walk on his heels and toes due to poor balance. He could squat to 50% of expected range which was limited by low back pain. On testing range of movement flexion/extension, and side bending were 80% of expected range with no asymmetry. Straight leg raise when lying was 70° on the right and 40° on the left but 80° bilaterally when seated. Sciatic nerve root tension signs were negative. On palpation there was no guarding or spasm noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal but there was an absent left ankle reflex and normal on the right. On testing for sensation, there was a decrease in sensation below the knee and left leg and in particular loss of sensation over the sole of the left foot. There was slight muscle wasting in the left leg. The circumference of the lower thighs was 47 cm on the right and 46 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves it was 42 cm on the right and 41 cm on the left.
There was a full range of movement of the ankles and knees with normal power. Flexion of both knees was 130° with 0° extension. No crepitus was noted on passive movement and on palpation there was mild patellofemoral tenderness over the left knee. No ligament laxity was noted.AD7 MRI lumbar spine 19 December 2022
After the examination of the claimant by Medical Assessor Moloney, the panel requested a copy of an MRI of the claimant’s lumbar spine of 19 December 2022. This was subsequently provided by the claimant and reviewed by the Medical Assessors. The Panel reports on this as follows:
EXAM: MRI Lumbar Spine, 19/12/2022 Clinical Details: Left lumbar radiculopathy. Right thigh pain. Technique: Sagittal and axial T1 and T2. Findings: Lumbosacral alignment is within normal limits. Vertebral body and disc heights are well preserved. The conus lies in the usual location, and the distal cord appears normal.
At L1/2, appearances are normal. At L2/3, appearances are normal.
At L3/4, there is moderate generalised disc bulging and there is a right paracentral disc extrusion with a sequestered fragment superior to the disc margin occupying the lateral recess and likely compressing the descending right L3 nerve root above the exit foramen.
There is also disc material occupying the lateral recess at the disc level which could be irritating and compressing the descending right L4 nerve root.
There is no significant central canal or foraminal stenosis.
At L4/5, there is a small right paracentral disc protrusion displacing the right L5 nerve root in the subarticular recess but there is no significant central canal or foraminal stenosis.
At L5/S1, there is mild broad-based posterior disc bulging more pronounced in the left paracentral zone. There is very slight posterior displacement of the left S1 nerve root in the subarticular recess. There is also moderate left foraminal stenosis with possible L5 nerve root irritation.
Comment: Correlation between imaging and the patient's pre scanning pain diagram is complex, the patient indicating bilateral symptoms, confined to the anterior right thigh which would correlate with a right paracentral disc extrusion/ sequestration at L3/L4 with likely irritation of the descending L3 and L4 nerve roots, as well as left L5 symptoms which may correspond to moderate foraminal stenosis on the left at L5/S1. Clinical correlation is suggested.
If required, CT guided injection of local anaesthetic and corticosteroid could be performed around symptomatic nerve roots upon request for both diagnostic and therapeutic purposes.
Lumbar radiculopathy typically manifests as pain, numbness, and/or weakness radiating down the leg. It's often expected that the symptoms would manifest on the same side as the pathology observed on radiological imaging; however, it's possible for symptoms to appear on the opposite leg. This shift in laterality could possibly be a result of rare occurrences like Crossed Radicular Syndrome or Contralateral Referred Pain, or even due to inflammatory mediators affecting the nerve roots on the other side.
The timing of the Motor Vehicle Accident (MVA) on 30 July 2018, closely followed by the onset of Mr. Luk's symptoms, beginning with an unusual sensation in his right leg on 9 August 2018, points towards a likely causal connection. The subsequent referral to Dr Sui on 16 September 2018, highlighting reduced sensation in the lateral borders of both feet and clinical signs of diminished left ankle reflex and weakness in left knee flexion, supports this connection. The ongoing development of lumbar radiculopathy is further backed by consistent evidence from radiological imaging aligning with objective signs of radiculopathy.
A noticeable difference exists between Dr. Coroneos' analysis and the interpretations of other medical professionals including the Panel and Medical Assessor Moloney regarding the cause and severity of Mr. Luk’s injuries. While Dr. Coroneos sees the lumbar spine findings as signs of degenerative changes, others, supported by radiological findings of a disc extrusion impinging the S1 nerve root, link Mr. Luk's lumbar radiculopathy to specific disc abnormalities triggered or worsened by the MVA.
The Panel finds the proposed surgical interventions, especially the L5/S1 discectomy fusion, to be reasonable and necessary given Mr. Luk’s ongoing radiculopathy and the inadequacy of conservative management, as shown by the persistent symptoms and functional impairments. The need for treatment shouldn't be determined solely by the timing of referral or denial but should consider Mr. Luk’s present medical condition, the severity of symptoms, the potential progression of the underlying pathology, and the anticipated benefits and risks tied to proposed treatments.
In conclusion, the Panel believes that the MVA on 30 July 2018 significantly contributed to Mr. Luk's lumbar radiculopathy and related symptoms. The suggested surgical intervention seems reasonable and necessary in easing Mr. Luk’s ongoing symptoms and enhancing his quality of life.
112.The Panel adopts the report and findings of Medical Assessor Moloney.
Causation
113.The claimant was a front seat passenger in a car which was stationary in the M5 tunnel. A truck failed to stop in time and collided with the rear of the claimant’s car. Whilst an ambulance attended, this was for the driver of the car was more seriously injured and not the claimant nevertheless, this is indicative of a forceful impact. That impact also caused the claimants stationary car to move forward and collided with the car in front so there are two immediate impacts. The claimant informed Medical Assessor Perla that he was thrown forward’s and backwards in the car which, even with a restraining seatbelt, is likely to have occurred.
114.The Panel accepts that the claimant would have injured his cervical and lumbar spines in an accident of this nature.
115.Following on from this, the Panel accepts that certain treatment would be necessary to the injuries occurring to the cervical and lumbar spines.
Treatment and Care – reasonable and necessary
116.The claimant submits that the Assessor’s assessment of whether the following treatment and care is reasonable and necessary was incorrect: -
a)Whether the request by Dr Raoul Pope, treating neurosurgeon dated 18 December 2019 for C5/6 and C6/7 anterior cervical discectomy fusion and L5/S1 discectomy fusion is reasonable and necessary in the circumstances.
b)Whether the request by Complete Allied Health Care dated 24 December 2019 for a walking stick is reasonable and necessary in the circumstances.
c)Whether the request by Complete Allied Health Care dated 16 November 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary' in the circumstances.
d)Whether the request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances.
117.With regard to what is reasonable and necessary treatment reference should be made to s 3.24(2) of the Motor Accident Injuries Act (the Act) which says:
“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 accident concerned.”
118.What is 'reasonable and necessary' is not the ideal requirements of the injured person, it is the reasonable requirements per Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter[1968] HCA 9.
119.In Sharman v Evans[1977] HCA 8 at [573], Gibbs and Stephens JJ said:
“The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost involving treatment will clearly be unreasonable...”
120.The criteria for determining reasonable and necessary treatment are set out in the SIRA Guidelines titled Reasonable and Necessary Criteria as follows:
• Is the treatment provided to date and proposed treatment directly related to the injuries sustained in the motor vehicle accident
• Was the treatment provided or is the proposed treatment aimed at helping the injured person get back to their usual duties
• Was the treatment provided or is the proposed treatment appropriate for the type of injury
• Was the treatment provided or is the proposed treatment to be provided by an appropriately qualified health professional
• Was the treatment provided or is the proposed treatment cost effective.
121.In relation to the proposed spinal surgery, the Medical Assessor found that the first and fourth points were satisfied. However, the Medical Assessor did not find that there was a likelihood that spinal surgery treatment would improve the claimant’s function at the late stage of his assessment. The Medical Assessor said that the treatment was not appropriate for the type of injury, noting the low level of functional disability declared.
122.In conclusion, the Medical Assessor found that the proposed surgical treatment recommended by Dr Pope on 18 December 2019 was not reasonable and necessary in the circumstances based upon the findings at his medical assessment.
Whether the request by Dr Pope, treating neurosurgeon dated 18 December 2019 for C5/6 and C6/7 anterior cervical discectomy fusion and L5/S1 discectomy fusion is reasonable and necessary in the circumstances
123.The claimant has expressed concern to undergo the recommended surgery. It is not for the Panel to discern whether he should or should not undergo this if deemed reasonable and necessary.
124.Following examination of the claimant, he was asymptomatic in the cervical spine. The claimant has submitted that the question of whether treatment is reasonable and necessary should be considered at the time the treatment was referred and at the time it was denied by the insurer rather than at the time of examination. The Panel does not agree with this.
125.If, at a later point in time, treatment is not considered necessary then it would be frivolous to recommend that it proceed. A review of the SIRA Guidelines on the five points for consideration would not all be satisfied if the treatment would no longer be of any benefit. The treatment could not help the person get back to his usual activities, the treatment would not be appropriate, and it would not be cost effective as well as not being appropriate if it was not necessary.
126.In the case of the claimant, as he is asymptomatic with respect to his cervical spine then treatment would not help him to get back to his usual duties. The treatment will also not be appropriate as he has no symptoms. The treatment would also not be cost-effective as it would be something coming at a cost but with no benefit as the claimant already has no symptoms.
127.By way of analogy and example, a claimant might have a compound fracture of his leg requiring fixtures and pins. Within a reasonable time, it might be recommended that the pins be removed but before that occurred, amputation of the leg became necessary. In this example the claimant’s argument could not be sustained as recommended surgery to remove the pins would be pointless as would approval for the treatment.
128.The Panel does not find that a C5/6 and C6/7 anterior cervical discectomy fusion is reasonable and necessary. It is not clinically indicated.
129.Dr Coroneos said there was no indication for a C5/6 and C6/7 ACDF as all the changes on imaging were of cervical spondylosis and that the claimant did not present with any fracture, dislocation, subluxation, radiculopathy or myelopathy. He said that to perform such surgery would be regarded as inappropriate. The Panel is not in disagreement.
130.However, as has been noted, the claimant did have ongoing and persistent signs of radiculopathy at the L5/S1 level which had been noted by several examiners. Dr Coroneos is not correct in this respect. He did not identify any radiculopathy but he is an outlier in that aspect. The Panel has commented on the opinions of Dr Coroneos in the medical examination section of this report.
131.Regarding the claim for surgery by way of an L5/S1 discectomy fusion, the Panel is of the finding that this is reasonable and necessary.
132.The claimant has persistent signs of radiculopathy at that level verified by several examiners including Medical Assessor Moloney.
Whether the request by Complete Allied Health Care dated 24 December 2019 for a walking stick is reasonable and necessary in the circumstances.
133.Regarding the need for a walking stick, the Medical Assessor concluded “the claimant today presented with only 1 cm left calf wasting. He tells me that he has
largely discarded use of the walking stick. I do not find an obvious organic medical reason to recommend a walking stick and indeed, use of a stick is contraindicated in the absence of a clear medical indication such as profound weakness or imbalance”.
134.The Panel is of the finding that it is reasonable for the claimant to be supplied with a walking stick. The surveillance video showed him using it on occasions but this is consistent with the history he has given when he is walking longer distances.
Whether the request by Complete Allied Health Care dated 16 November 2019 for eight
sessions of physiotherapy and any associated costs is reasonable and necessary' in the
circumstances
AND
Whether the request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances.
135.Two Allied Health Recovery Requests have been made for eight sessions of physiotherapy to both the claimant’s cervical and lumbar spines.
136.For the reasons given above, the Panel does not see the need for physiotherapy treatment to the claimant’s cervical spine. However, the Panel does agree that physiotherapy treatment should be performed to his lumbar spine and that this would be reasonable now. The claimant has continuing signs of radiculopathy and physiotherapy treatment would still be appropriate.
Additional considerations
137.No submissions were made in the claimants review application about the costs of an interpreter. This has not been raised as a review point by the claimant and the insurer has not had to address this issue. The Panel makes no determination about this issue as it is not something raised for determination.
138.Regarding the earning capacity dispute, that too is not a matter which was before the Panel for determination. The claimant accepts the findings of the Medical Assessor about this. The Panel is satisfied, following clinical examination of the claimant, that he does have an earning incapacity in the terms noted by the Medical Assessor. This has resulted from the injury caused by the accident.
139.This is however, a hearing de novo. All matters before the Medical Assessor are for review. As the Panel agrees with the findings of the Medical Assessor concerning the claimants earning incapacity, it concurs that the claimant has a capacity to work in his normal sedentary employment as an accountant on a part time basis for 30 hours per week.
140.On the clinical assessment of the claimant, the Panel confirms the observations of the Medical Assessor that;
a)The claimant has a fair sitting tolerance based upon observations of his sitting during the assessment.
b)A standing tolerance of up to one hour
c)There is mild restriction of his capacity for deep forward bending at the waist.
d)He is able to drive over moderate distances.
e)There is no associated cognitive dysfunction.
f)His use of medications is minimal and does not impact upon his cognitive function.
141.The claimant is fit for his normal pre-accident work as an accountant within those hours of work. His capacity for work is affected by his perception of pain and his requirement for postural breaks.
142.The Panel finds that the impairment to earning capacity is likely to be permanent.
Determination
143.The Panel revokes the certificate of Medical Assessor Home dated 22 February 2022.
144.The Panel finds that the claimant has an earning capacity of 30 hours per week
145.The Panel finds that the request for surgery by Dr Pope, dated 18 December 2019, for C5/6 and C6/7 anterior cervical discectomy fusion is not reasonable and necessary in the circumstances.
146.The Panel finds that the request by Dr Pope, dated 18 December 2019, for L5/S1 discectomy fusion is reasonable and necessary in the circumstances.
147.The Panel finds that the request by Complete Allied Health Care dated 21 October 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary in the circumstances.
148.The Panel finds that the request by Complete Allied Health Care dated 16 November 2019 for eight sessions of physiotherapy and any associated costs is reasonable and necessary' in the circumstances.
149.The Panel finds that the request by Complete Allied Health Care dated 24 December 2019 for a walking stick is reasonable and necessary in the circumstances.
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