Martin v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Martin v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 691
CLAIMANT:	Kerry Elizabeth Martin
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Leslie Barnsley
DATE OF DECISION:	3 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; physical injury to right shoulder and cervical spine caused by rear-end accident in June 2021; assessment of permanent impairment and treatment dispute; injuries to cervical spine and right shoulder caused by motor accident; no relevant principles; claimant fell in 2023 injuring left shoulder due to vertigo; absence of vertigo symptoms following motor accident; other potential causes including severe COVID-19 and cerebrovascular disease; finding that left shoulder condition not caused by motor accident; treatment disputes; lengthy past physiotherapy and exercise physiological treatment; future treatment not necessary; occupational therapy assessment undertaken; where treatment considered reasonable and necessary and caused by motor accident; Held – permanent impairment assessed at less than 10%; treatment disputes confirmed as per original Medical Assessor; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% *THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS: The Panel revokes the medical assessment certificate dated 22 April 2024 and issues a new medical assessment certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: · right shoulder; · cervical spine, and · chest – contusion (resolved). Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care** Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 22 April 2024.

REASONS

BACKGROUND

On 21 June 2021 Ms Kerry Martin (the claimant) sustained injuries in a motor accident. The claimant’s vehicle was rear-ended by the insured vehicle which caused a secondary collision into the vehicle in front.[1]
[1] Claimant’s bundle, p 35.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Martin any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Martin’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%” 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)” within the meaning of the MAI Act. These constitutes medical disputes within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
The treatment and care disputes were referred for assessment:
·exercise physiological treatment pursuant to the Allied Health Recovery request dated 13 April 2023;
·physiotherapy treatment (further 8 sessions) submitted by Seven Hills Physiotherapy on 28 February 2023, and
·Occupational Therapy Assessment as referred by Dr Kim on 31 May 2023.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the injury is a threshold injury and treatment and care disputes are medical assessment matters. 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[4] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[4] Section 7.20 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor McGrath and dated 22 April 2024 (the medical assessment certificate).[5]

THE REVIEW
[5] Claimant’s bundle, p 5.

The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[6]
[6] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to 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.[7]
[7] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction dated 16 August 2024 that the Panel would consider the medical assessment certificate of Medical Assessor Veerabangsa. The parties were invited to but did not make any submissions.

STATUTORY PROVISIONS

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”

ASSESSMENT UNDER REVIEW

The Medical Assessor found that the motor accident caused soft tissue injuries to the right shoulder and the cervical spine and assessed whole person impairment at 7%.
The Medical Assessor did not accept that the subsequent falls were related to the motor accident. He stated:[13]
“Much later, in 2023, she had two falls. There is no convincing clinical evidence that these falls are related to her motor vehicle accident injuries. There are multiple other possibilities including a history of supraventricular tachycardia, middle ear disease and general unsteadiness associated with age and knee replacements. The first fall, may have been a simple trip which precipitated further events. In addition, continuous dizziness from the MVA was not confirmed.”
[13] Claimant’s bundle, p 12.
The Medical Assessor otherwise found that the claimant had recovered from the seatbelt strain to the chest.

OTHER MEDICAL ASSESSMENT

Medical Assessor Veerabangsa issued a certificate dated 18 April 2024. The Medical Assessor noted the following symptoms:
“She complained of headaches at the back of the head, neck pains, shoulder pains, dizziness and vertigo. The dizziness and vertigo usually occur with movement of head and neck as in turning around, and has had a few falls after losing her balance. In February 2023 she was walking through the corridor at home and realised that she had to pick up the keys and turned left to pick them. This triggered an episode of vertigo and became unsteady and fell on her left shoulder. She went to Bankstown Hospital emergency dept for medical attention. She described the episode as seeing and feeling things around her going in circle and losing her balance. It had happened while in the garden when she bent down, a week previously. No cognitive or behavioural difficulties related to a head injury reported.”
The Medical Assessor described the accident causing the head symptoms as follows:
“She had struck the back of the head (occipital area) against the head rest during the accident. It was not a high speed motor accident. There was no loss of consciouness and claimant recalls the details of the accident. No retrograde or post traumatic amnaesia. Brain imaging both CT brain scan and MRI brain scan showed no intracranial findings related to the injury. No skull fractures reported. She complains of headache and neck pain post injury. She has developed vertigo and unsteadiness about an year and 8 months post injury.”
The findings on examination were:
“Neurological examination showed no sensory motor deficits. Deep tendon reflexes normal bilaterally. Normal external ocular movements, no nystagmus, no diplopia. She reports of no hearing loss or tinnitus as a result of the injuty. There was no local swelling or tenderness over the occipital area on palpation. No tenderness or muscle spasm over the occipital area and cervical spine. There was reduced range of motion of the neck and shoulder joints and associated pain due to reported musculoskeletal injury which limited neurological examination. Balance and coordination were within normal limits. Gait pattern was normal with standby assistance. Clinical tests for vertigo: Fukuda-Unterberger test, Romberg’s test, Head impulse test were all normal.
There were no cognitive impairments to note. On the Mini Mental State Examination she scored 30/30.”
The findings by the Medical Assessor on causation of injury were:
“Diagnosis and reasons
Based on the history, clinical details provided, imaging results and my examination, there is:
No evidence of a Head Injury (HI) / Traumatic Brain Injury (TBI).
No symptoms and signs of a Concussion Syndrome. No evidence of Vertigo related to the injury.
Reasons
No high-speed impact, no altered level of consciousness, confusion or memory loss related to the injury. No related cognitive or neurological impairments. No injury related finding in the brain scan imaging. These findings do not support a diagnosis of HI/TBI.
Post subject motor accident GP clinical notes mention of occipital headaches. Likely cervicogenic. No associated nausea, visual abnormalities like nystagmus, double vision, blurred vision or photophobia. No cognitive or behaviour difficulties. No dizziness or balance difficulties. These findings do not meet the criteria for a diagnosis of Concussion Syndrome. No reported vertigo or falls at home related to the injury.
Causation and reasons
The injuries referred were not caused by the motor accident.”
The appellant sought leave to review that medical assessment.
On 21 June 2024 the President’s delegate rejected the claimant’s application seeking leave to review that medical assessment.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundle of documents for the Panel’s consideration.

Pre-existing conditions

An X-ray and ultrasound of the right shoulder dated 10 March 2015 showed tendinosis of the supraspinatus and features of bursitis.[14]

[14] Claimant’s bundle, p 152.

Medical records post-accident

On 23 June 2021 the general practitioner (GP) noted the recent motor vehicle accident when the claimant hit her head on the headrest in a whiplash action complaining of a sore chest, posterior headache with nil change in vision or vomiting.[15]
[15] Claimant’s bundle, p 167.
A CT scan of the brain dated 24 June 2021 noted the motor accident when the claimant hit her head and showed no intra or extra cerebral haemorrhage, noting a normal examination with no complications of trauma.[16]
[16] Claimant’s bundle, p 158.
On 30 June 2021 the GP reviewed the CT brain scan and noted persisting back of head pain with the claimant denying in blurred vision, dizziness or light headedness. The shoulder scan was unavailable at that time.[17]
[17] Claimant’s bundle, p 168.
On 8 July 2021 the GP noted that the claimant was suffering from post-concussion syndrome post the motor accident with persisting headaches at the back of the head. The GP noted nil light-headedness or dizziness and denied loss of consciousness.[18]
[18] Claimant’s bundle, p 169.
The X-ray and ultrasound of the right shoulder dated 20 July 2021 showed a large full-thickness partial width tear of the mid and posterior portions of the supraspinatus tendon.[19]
[19] Claimant’s bundle, p 153.
The claimant completed a claim form dated 21 July 2021 wherein she referred to the motor accident causing injuries to the chest, neck and back of head.[20]
[20] Claimant’s bundle, p 35.
On 21 July 2021 the GP noted that headaches were improving but still not gone, the claimant could not lie on her back for prolonged periods due to headache and otherwise denied dizziness, light headedness, nausea or loss of consciousness.[21]
[21] Claimant’s bundle, p 171.
The MRI scan of the cervical spine dated 28 July 2021 was reported as showing no definite acute pathology detected on a background of multilevel facet joint degenerative changes.[22]
[22] Claimant’s bundle, p 159.
The MRI scan of the brain dated 29 July 2021 noted a clinical history of post-concussion syndrome since the motor accident with persisting occipital headaches and neck pain. The MRI scan showed features of likely chronic small vessel disease.[23]
[23] Claimant’s bundle, p 161.
On 4 August 2021 the GP noted that there was no headache, but the claimant was sore on the back of the head.[24]
[24] Claimant’s bundle, p 172.
On 17 August 2021 the GP noted ongoing headache and right shoulder pain.[25]
[25] Claimant’s bundle, p 173.
On 15 September 2021 the GP noted ongoing shoulder pain and headache.[26]
[26] Claimant’s bundle, p 197.
The claimant consulted Dr Andrew Martin, neurologist, on 28 September 2021.[27] Dr Martin noted the claimant had a long-standing history of headaches which had been worsening over the previous 18 months and noted the recent motor accident when the claimant had a little bit of a head knock in the whiplash type injury with no loss of consciousness.
[27] Claimant’s bundle, p 254.
Dr Martin noted there was worsening of the headache since that time which were chronic low-grade headache described as a dull ache at the back of the head. The headache as worse with neck movement and lying down for prolonged periods of time. The claimant did not describe any associated symptoms with no visual disturbance, no visual loss, no photophobia and occasional nausea but no vomiting.
Other symptoms included paraesthesia in the fingers which had commenced approximately one year previously.
Dr Martin opined that the claimant suffered from cervicogenic headache with a background of tenson-type headache with the possible alternative of occipital neuralgia although the symptoms were not consistent with that diagnosis. The doctor recommended a neuropathic medication to treat the headache.
The claimant commenced physiotherapy in October 2021 for pain in the neck and right shoulder.[28] Subsequent reports noted ongoing improvement.[29]
[28] Claimant’s bundle, p 117.
[29] Claimant’s bundle, pp 119-122.
Dr Martin reviewed the claimant by teleconsult on 13 January 2022.[30] The doctor noted the claimant was taking Lyrica with a very good response and the pain was much improved. On 1 June 2022 Dr Martin reviewed the claimant and noted the good response to Lyrica for the cervicogenic headache.[31]
[30] Claimant’s bundle, p 260
[31] Claimant’s bundle, p 265.
The clinical notes of the GP in 2022 do not refer to headache save that the clinical note dated 25 August 2022 refers to headache and dizziness in the context of a dry cough.[32]
[32] Claimant’s bundle, p 205.
On 30 November 2022 the claimant was making steady progress doing the exercise physiology sessions although she had encountered increased episodes of vertigo.[33]
[33] Insurer’s bundle, p 12.
Exercise physiology treatment commenced in June 2022 directed to improving overall upper limb function and strength particularly in the right shoulder.[34] The claimant continued with this treatment and physiotherapy treatment throughout 2022 and into 2023.[35]
[34] Claimant’s bundle, p 123.
[35] Claimant’s bundle, pp 125-135.
The X-ray and ultrasound of the left shoulder dated 7 March 2023 showed a large acute full-thickness partial width tear of the mid and posterior portions of the supraspinatus tendon with tenosynovitis of the long head of the biceps tendon.[36]
[36] Claimant’s bundle, p 163.
On 22 March 2023 the physiotherapist noted that the claimant was improving following physiotherapy for the neck and right shoulder pain as well as vertigo symptoms. It was noted that the claimant had a recent fall and reported left anterior shoulder pain.[37]
[37] Claimant’s bundle, p 136.
On 27 March 2023 Dr Bland, GP, noted that the claimant had two recent falls, one in the garden and one in the hallway of her house. The doctor noted the claimant had experienced “true vertigo which precipitated the falls” and had never experienced vertigo prior to the motor accident.[38]
[38] Claimant’s bundle, p 140.
On 22 May 2023 Dr Bland noted the claimant was severely disabled because of the left rotator cuff.[39]
[39] Claimant’s bundle, p 141.
On 15 June 2023 the physiotherapist noted improvement from physiotherapy to the neck, right shoulder and vertigo symptoms but that the applicant sustained injury to the left shoulder in February 2023 whilst experiencing vertigo symptoms.[40]
[40] Claimant’s bundle, p 151.

Dr Duckworth

Dr David Duckworth, surgeon, initially examined the claimant on 14 September 2021.[41] The doctor noted restricted right shoulder movement with diffuse pain and an irritable rotator cuff. Dr Duckworth noted the claimant’s presentation of an acute injury affecting the right shoulder following the motor accident and recommended a cortisone injection.
[41] Claimant’s bundle, p 115.
On 12 October 2021, Dr Duckworth, noted the recent MRI scan of the right shoulder showed a full thickness supraspinatus tear and that the claimant had some relief with a cortisone injection.[42]
[42] Insurer’s bundle, p 9.

On 23 November 2021 Dr Duckworth noted that the claimant had a better range of motion and slightly increased strength.[43]
[43] Insurer’s bundle, p 10.
On 10 March 2022 Dr Duckworth noted that the claimant was doing most activities, and she felt like her right shoulder had improved with some slight weakness around the shoulder and mild neck pain.[44]
[44] Insurer’s bundle, p 11.

Qualified opinions

Dr Sean Low, occupational physician was qualified by the claimant and provided a report dated 10 January 2023.[45] Dr Low opined that the motor accident caused vertigo that is reproduced through suddenly turning her head and a whiplash associated disorder to the cervical spine.
[45] Claimant’s bundle, p 89.
The doctor provided a further report dated 14 November 2023 noting the claimant suffered cervical spine pain with non-verifiable left upper limb radicular symptoms, right shoulder rotator cuff tear and a soft tissue injury to the right hip which had resolved.
The doctor noted that the claimant continued to experience ongoing headaches, neck pain and shoulder pain secondary to the injury. There was a reference to vertigo when suddenly turning her head.
Dr Low provided a further report dated14 November 2023.[46] The doctor noted that since the previous report the claimant had sustained a fall on 26 February 2023 when, whilst at home, she turned to grab her keys, suffered a head spin resulting in her falling on the left side of the body.
[46] Claimant’s bundle, p 97.
Dr Low confirmed the diagnosis made in the previous report and concluded that the claimant sustained a left shoulder rotator cuff tear caused by the ongoing vertigo. The doctor assessed the cervical spine at 5%, the right shoulder at 7% and the left shoulder at 8% permanent impairment.[47]
[47] Claimant’s bundle, p 108.

SUBMISSIONS

Claimant’s submissions dated 15 August 2023[48]
[48] Claimant’s bundle, p 17.

The claimant referred to the motor accident when the claimant’s vehicle was rear-ended by the insured vehicle which caused a further collision in front. It was noted that there were reasonably contemporaneous complaints of headache, whiplash injury, head injury and a sore chest. On 8 July 2021 the claimant reported pain in the right shoulder and ongoing head pain.
The claimant noted the right shoulder ultrasound scan dated 20 July 2021 which showed a large full-thickness partial tear of the supraspinatus tendon which differed from the pre-existing schemes dated 10 March 2015.
The claimant referred to post-concussion syndrome symptoms reported to Dr Sen on
8 July 2021 and submitted that she had clearly suffered some type of head injury with throbbing headaches and vertigo. These symptoms were reported to Dr Martin, neurologist on 17 August 2021.
The claimant submitted that she had suffered vertigo since the motor accident which did not resolve, precipitated two falls, one occurring in the garden and the other in the hallway. The fall due to the vertigo in the hallway caused the claimant to suffer a left shoulder injury in the form of a rotator cuff tear.
The left shoulder ultrasound dated 7 March 2023 revealed a large full-thickness partial with tear of the supraspinatus tendon.

Claimant’s submissions dated 20 May 2024[49]

[49] Claimant’s bundle, p 22.

These submissions addressed both medical assessments.
We note that the delegate has rejected the review of the other medical assessment and do not repeat those submissions.
The claimant submitted that the Medical Assessor failed to grapple with the issue of causation and provide adequate reasons. It submitted that the findings were “speculative”, not anchored or supported by any evidence relating to the claimant and did not apply the correct test of causation.

Insurer’s submissions dated 30 August 2023[50]

[50] Insurer’s bundle, p 2.

The insurer noted the claim form dated 21 July 2023 reporting the injuries. The CT scan of the brain dated 24 June 2021, and the GP records dated 23 June 2021, 8 July 2021 and
21 July 2021.
The insurer noted the right shoulder ultrasound dated 21 July 2021 in the context of a prior scan dated 10 March 2015.
The insurer noted the cervical spine MRI scan dated 28 July 2021 which showed no acute pathology, and the MRI scan of the brain dated 29 July 2021 which showed likely chronic small vessel disease.
The insurer noted the treatment from Dr Duckworth and physiotherapy which showed improvement of symptoms.
The insurer referred to the medical certificate of Dr Bland dated 27 March 2023 which noted two recent falls due to true vertigo. A subsequent left shoulder ultrasound showed a full thickness partial tear.
The insurer noted subsequent physiotherapy undergoing 55 sessions since 7 June 2022 and the further request dated 2 April 2024 [sic].
The insurer noted that the request for occupational therapy assessment in May 2023 related to the left shoulder condition which was unrelated to the motor accident.
The insurer submitted that the vertigo was not causally related as the documented onset was approximately 17 months after the motor accident. The left shoulder condition occurred in March 2023, 21 months after the motor accident and was not causally related. It submitted that the treatment request for physiotherapy, exercise physiology assessment were unrelated to the accident and not reasonable and necessary.
The insurer otherwise submitted the claimant’s physical injuries did not exceed the 10% threshold.

Insurer’s internal review dated 21 March 2023[51]

[51] Insurer’s bundle, p 49.

This internal review detail the extensive physiological and physiotherapy treatment paid for by the insurer. It noted that at the time the Allied health recovery request number seven was submitted, the claimant had attended a total of 47 sessions of physiotherapy treatment and, running concurrently, once weekly physiotherapy treatment with Seven Hills physiotherapy since June 2022 with a total of 37 supervised sessions.
The insurer noted that whilst the treatment provided some temporary short-term symptomatic relief, there was no evidence to support the view that the treatment produced any long-term benefits or empowered the claimant to manage her own recovery.

Insurer’s submissions dated 31 May 2024[52]

[52] Insurer’s bundle, p 34.

These submissions were filed opposing the application to review the medical assessment certificate.
The insurer submitted that the Medical Assessor had considered the medical evidence and noted that the left shoulder rotator cuff tear was secondary to a fall from vertigo.
The insurer referred to the report of Dr Andrew Martin, neurologist, dated
28 September 2021, which stated the claimant had a period of dizziness after the motor accident which had since resolved.
The insurer submitted that the Medical Assessor was aware of the dispute and provided detailed reasons on the issues. It noted that there was no evidence of continuous dizziness following the motor accident and that the MRI scan of the brain only reported long-standing changes rather than any acute findings.
The insurer submitted there was no requirement for Medical Assessors to do further independent research and cite medical, scientific and/or research papers.

RE-EXAMINATION

Ms Martin was examined by both Medical Assessors on 17 September 2024. The examination report is as follows:
“Ms Martin attended with her son.
Pre-accident medical history and relevant personal details
Ms Martin is 70 years of age.
She is widowed and has 4 adult children. One of the children is disabled and lives with her - another son lives in a granny flat on the block.
Her past history includes SVT at starting around 23 years ago which required a cardiac catheter ablation procedure. The intervention was successful for a number of years until the COVID pandemic which led to a recurrence. She needed cardioversion in hospital and was in ICU for a week. She is now on anti-arrhythmic drugs for that problem.
She has had gallbladder surgery as well as appendix and tonsils. In her younger years, she suffered from endometriosis and she also had recurrent miscarriages.
Ms Martin worked in a bank for eight years before beginning her family. She returned to work with an import/export company as a secretary and supervisor.
During this employment she developed significant back pain which was always treated with simple analgesics or heat. After the birth of her disabled son, she quit work and has not returned.
She had bilateral knee replacements, around 15 years ago, for severe osteoarthritis. She has been developing arthritis in other regions including her hands
She was in a previous motor vehicle accident 3-4 years ago which also led to back pain and 6-8 weeks of treatment.
She has not had any ear problems, such as hearing loss, vertigo or tinnitus before or after the subject accident.
She has not had migraines although her mother had migraines.
History of the motor accident
Ms Martin was involved in an MVA on 21 June 2021 at 5.00pm. She was driving her dual cab vehicle with her disabled son in the front seat when the accident occurred. They were in a 50 kph zone. She had her hands at the bottom of the steering wheel at the time of impact. She does not recall her shoulders hitting the sides of the car.
Police and ambulance were not in attendance but a tow truck was. The car was later written off by the insurer.
History of symptoms and treatment following the motor accident
She was picked up by her son from the accident and taken home. That evening and the next day she felt soreness over the right anterior chest region consistent with seatbelt restraint bruising.
She consulted a GP, Dr Dhaliwal, a few days later. Her usual general practitioner had recently become ill with cancer. She has since come under the care of Dr Bland.
The main continuing pains were in the front of the right shoulder and the neck. She felt that these were separate pains – the shoulder pain did not seem to arise from the neck.
On 17/8/21 she saw Dr Andrew Martin, neurologist. She had tingling in the left hand and fingers. She had a numb left thigh with standing. He stated that she had some dizziness soon after the accident but that it had resolved. She was prescribed Lyrica.
She has been receiving physiotherapy and exercise physiology. This continued until late 2023.
During the Covid pandemic she had a severe Covid infection on 17 March 2022. She collapsed at home and was in ICU for one week. She reported that they told her that she had collapsed because she was dehydrated. She took some months to recover from this and still has no taste – smell is OK.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Martin has had two falls following the accident. She had a fall in her garden in January 2023 resulting in a sore nose. She is unsure whether she tripped or was dizzy.
She did not report any problems with balance or dizziness or “spinning’ until a further fall in February 2023. This time it was at night at night in the hallway of her house. She was making a quick turn to the left and had a spinning sensation - she fell down onto her left-hand side. She said that it was different from fainting.
She said that she ‘down pretty hard’. Her son assisted her, and an ambulance was called.
She had physiotherapy for 4-5 months to the left shoulder.
On 13 April 2023 the Exercise Physiology Allied Health Recovery Request reported she was experiencing left shoulder pain from falling on left shoulder; the right shoulder felt better than the left. She had undergone 55 sessions of treatment since 7 June 2022 and a further 8 sessions over 4 weeks were being requested.
Current symptoms
She indicated that she had tension and discomfort along the right side of her neck. It radiated to the base of her skull she reported. She still cannot turn her head to look over her shoulders.
She also bilateral shoulder pains. The right one arose shortly after the motor vehicle accident and the left one after her second fall. The right shoulder pain is constant – the left shoulder pain is intermittent.
There is no radiation of pain to the arms – the ‘tingling’ in the fingers which she had at one stage has resolved.
She has moved items in her house to lower levels, so she does not have to reach up.
She has not driven since the second fall. Ever since that fall she has felt prone to dizziness and tends to walk with a walker to prevent a recurrence if she needs to walk more than a few blocks. If she is on an escalator she needs to hold on to the rail.
She looks down often because she feels unsteady on her feet. She can have a similar sensation if she rolls over in bed. She has occasional tinnitus she reports ‘like traffic noise’.
Current and proposed treatment
Ms Martin continues on:
-    Zoloft – since before the accident
-    Eliquis and Sotolol after the cardioversion
-    Anti-hypertensive
-    Occasional Panadol
She does some home exercises given by the physiotherapist occasionally.
EXAMINATION
She moved easily around the examination area with no limp.
Her height was 163cm and her weight 106.5kg – she has gained 20kg but is now in a weight loss group.
Cervical Spine
Ms Martin has a mildly restricted movements in the neck in all planes. Flexion and extension were reduced to two thirds normal. Rotation to the left and right was restricted to one half normal. Lateral flexion to the left and right was one half normal.
There was some mild tenderness over the right neck but no muscle spasm or guarding.
She did not have non-verifiable radicular complaints in the upper limbs.
Neurological examination of the upper limbs was normal. That is, she had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy. She did not have radiculopathy.
Upper Extremity
Ms Martin has a moderate bilateral restriction of shoulder movement.
There was no wasting of musculature. She was mildly tender over the right shoulder anteriorly.
On the right side there was acromio-clavicular crepitus. She was also tender over the right sterno-clavicular joint.
There were postive impingment signs on both sides. Active range of motion was observed, measured by goniometer and tabulated below:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

110°

110°

Extension

60°

60°

Adduction

40°

40°

Abduction

80°

90°

Internal Rotation

60°

70°

External Rotation

60°

50°

Chest
Ms Martin did not have any chest symptoms. Examination of this region was also normal.
Neurological
Power, sensation and reflexes in the upper limbs was normal.
There was no wasting – in the forwearm the circumference was 29cm on the right and 28cm on the left measured 10cm above the medial epicondyle. The forearm circumference on the right was 44cm and on the left 44cm measured 10cm below the medial epicondyle.
She was unsteasdy with heel-toe walking.
There were no cerebellar signs – finger-nose testing was normal, there was no dysdiadochokinesis and there was no nystagmus.
Comments on consistency

There were no inconsistencies
REVIEW OF INVESTIGATIONS
Summary of relevant investigations
10/3/15. XR and US Right Shoulder. Tendinosis SST and bursitis.
20/7/21. US and XR right shoulder. A large full-thickness partial-width tear of the mid and posterior portions of the supraspinatus tendon, mild tenosynovitis of the long head of biceps tendon, and arthritis of the acromioclavicular joint.
28/7/21.MRI neck reported there was no acute pathology detected. There was multilevel uncovertebral and fact joint present at the neck.
29/7/21.MRI brain found evidence of likely chronic small vessel disease.

12/10/21. Dr Duckworth reported that the MRI scan of her right shoulder shows a full thickness supraspinatus tear. She has had some relief with a cortisone injection.
7/3/23. US Left Shoulder - acute large full thickness partial tear of the supraspinatus tendon, a mild to moderate tenosynovitis of the long head of biceps and mild calcific tendinosis of the infraspinatus tendon.
Summary of relevant radiological and medical imaging and other investigations
No radiological and medical imaging was brought to the assessment:

DETERMINATIONS - PERMANENT IMPAIRMENT

Causation and reasons
Ms Martin was involved in an MVA on 21 June 2021. This was a forceful rear-end impact. She did not feel particularly injured at the time of the accident but later developed neck soreness and right shoulder discomfort consistent with the nature of the impact and seatbelt restraint.
In 2023, she had two falls. The first fall was more like a simple trip – one could not relate this to the motor accident.
The second fall was associated with a sense of spinning related to neck rotation, suggestive of vertigo.
In the report dated 27 March 2023 Dr Bland, her GP, states that these falls were due to true vertigo. Dr Bland states the Claimant had never experienced vertigo prior to the subject accident. They noted Dr Andrew Martin (Neurologist) had stated in 2021 that she had some dizziness after the accident but that this had resolved.
The Panel Medical Assessors noted that the history of the second fall, in which she injured the shoulder, was the first time she had noted such a symptom. She did not have nausea, vomiting or hearing change. She has not had subsequent episodes. She currently feels that she is occasionally off balance and has some positional dizziness without any vertiginous component when looking down. The medical Panel considered that it that the episode in which she fell was unrelated to the accident in question.
The Panel considered whether the accident caused the balance alteration and spinning which led to the fall. The first question was whether the accident could cause an injury to the ear or brain that could cause a sense of spinning or vertigo. Head injuries can cause these symptoms through involvement of the brain or through damage to the vestibular apparatus in the ear. The accident involved a headstrike sufficient to precipitate investigation with a CT scan. It was therefore concluded that the MVA could have caused some vertigo.
In considering the second component of causation, that is did the accident cause the vertigo, the Panel noted that on history today, the claimant denied any vertiginous symptoms between the accident and the fall in 2023. The Panel considered it medically implausible that an injury could occur to the brain or vestibular structures that would remain asymptomatic for over 18 months before causing symptoms. Any direct injury would be expected to cause early symptoms. Furthermore, there was no clinical evidence of other traumatic brain injury and no abnormal neurological findings when she was assessed a by a neurologist after the accident. She did have a severe episode of COVID and has documented cerebrovascular disease. She has some current subtle balance disturbance which is not vertiginous. The Panel considered these factors (COVID and cerebrovascular disease) were a more likely explanation for any balance issues than a temporally remote motor vehicle accident. The Panel therefore concluded that on the balance of probabilities, the vertiginous episode precipitating the fall in 2023 was not caused by the motor vehicle accident.
The Panel members noted her current unsteadiness with heel-toe walking on examination now – they could not relate this to the motor accident and thought it more likely related to the evidence of likely chronic small vessel disease (on MRI in 2021) in addition to the ongoing deconditioning effects of the Covid infection.
If the falls cannot be related to the accident, then the left shoulder impairment is not causally related to the motor vehicle accident.
Diagnosis and reasons
There is clinical support for the following injuries arising from the MVA
·     Right shoulder-soft tissue injury
·     Cervical spine -soft tissue injury
·     Chest - Seatbelt strain
Summary of injuries referred for assessment
The following injuries WERE caused by the motor accident:
·     Right shoulder-soft tissue injury
·     Cervical spine -soft tissue injury

·     Chest - Seatbelt strain
The following injuries WERE NOT caused by the motor accident:
·     Left shoulder rotator cuff tear - secondary consequential injury as a result of a fall
The following injuries caused by the motor accident have resolved
·     Chest - Seatbelt strain
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
‘Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.’
It is now 3 years since the MVA. Her injuries are stable and a permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.
DETERMINATIONS – PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
In the cervical spine, which she had some restriction in movement with pain, the restriction was symmetrical and there was no non-verifiable radicular referral to the upper limbs. The impairment is therefore DRE I giving 0% WPI based on Table 73 on page 110 of AMA 4^th Edition Guides.
In the right shoulder her range of motion was reduced compared with Assessor McGrath’s Certificate – when questioned about this, she put this down to the fact that her physiotherapy had been ceased.
Tables 38, 41 and 44 on pages 43, 44 and 45 of AMA 4^th Edition were used to determine impairment of the right shoulder. The limitation in flexion gave her a 5% upper extremity impairment (UEI), the limitation in extension a 0% UEI, the limitation in abduction a 5% UEI, the limitation in adduction a 0% UEI, the limitation in external rotation a 2% UEI and the limitation in internal rotation a 0% UEI. The total UEI is therefore 12% which equates to a WPI of 7%.
Permanent impairment table
An impairment is calculated for the cervical spine and right shoulder.

Body Part or System

AMA Guides/ Guidelines References

(chapter/ page/table)

Permanent

(YES/NO)

Current %WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to motor accident

Cervical Spine

AMA4 Table 73; p110

YES

0%

0%

0%

Right Upper Extremity/

Shoulder

AMA4 Chap 3.1; Tables 38, 41 and 44 on pages 43, 44 and 45 of AMA4

YES

7%

0%

7%

* WPI whole person impairment
Apportionment
There is no need for apportionment.
Pre-existing/subsequent impairment
No adjustments are indicated. She had right shoulder investigations in 2015 showing tendinosis. Degenerative disease, indicated by the acromioclavicular and shoulder crepitus were noted on the right. These were however asymptomatic before the accident no deduction is appropriate.
Effects of treatment
No adjustments are indicated.
DETERMINATIONS - TREATMENT
Treatment and Care – causation
The physical treatments she sought regarding the right shoulder and neck were related to the accident. The left shoulder treatments were not related.
Treatment and Care – reasonable and necessary
With respect to Physiotherapy and Exercise Physiology, Ms Martin has received a large amount of physiotherapy and exercise physiology.
Much of the treatment in the subject requests relate to treatment of the left shoulder which is, as discussed above, unrelated to the subject accident.
She had developed a home exercise program with elastic bands at home – ongoing physiotherapy and exercise physiology was not reasonable and necessary as self-management of her ongoing pain was well established by then.
With respect to Home Occupational Therapy Assessment, this has already occurred. She has been equipped with a lower clothesline which is consistent with right shoulder impairment. They have also made other recommendations with respect to lawnmowing. This intervention was reasonable and necessary.

CONCLUSION – PERMANENT IMPAIRMENT

Degree of permanent impairment caused by the motor accident 7% WPI

CONCLUSION -TREATMENT

The following treatment and care relates to the injuries caused by the motor accident:
·the request for 7 to 8 further once weekly sessions of physiotherapy at a total cost of $1,200.80 submitted by Seven Hills Physiotherapy and Sport Injury Centre on 28 February 2023
·the request for exercise physiology treatment requested within the allied health recovery request dated 13 April 2023
·the request for a Home Occupational Therapy Assessment
The following treatment and care is reasonable and necessary in the circumstances:
- the request for a Home Occupational Therapy Assessment
The following treatment and care is not reasonable and necessary in the circumstances:
·the request for 7 to 8 further once weekly sessions of physiotherapy at a total cost of $1,200.80 submitted by Seven Hills Physiotherapy and Sport Injury Centre on 28 February 2023
·the request for exercise physiology treatment requested within the allied health recovery request dated 13 April 2023”

FINDINGS

The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[53]
[53] Section 7.26(6) of the 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[54] and Insurance Australia Ltd v Marsh.[55]
[54] [2021] NSWCA 287 at [40], [41] and [45].
[55] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
We accept that one of the two falls, probably the latter, in early 2023 caused left shoulder symptoms. We are not satisfied, on the balance of probabilities, that either fall is causatively related to the injuries suffered in the motor accident.
The fall in January 2023 when the claimant was in the garden. She stated to the Medical Assessors that she was unsure whether she tripped or suffered from vertigo causing her to fall. Medical Assessor McGrath obtained a similar history that the claimant was unsure how she fell.
The claimant did not seek medical attention at that time and described the injury as to her nose.
The lack of clarity by the claimant as to why she fell means that we are not satisfied on balance, that this fall is due to the motor accident. Further, given the timing of the two falls and subsequent treatment, it is likely that the fall in the hallway in late February 2023 caused left shoulder symptoms.
We accept the claimant’s history that the fall in the hallway was triggered by vertigo. We do not accept that, on the balance of probabilities, the vertigo was caused by the motor accident. The reason provided by Medical Assessor Veerabangsa[56] does not support a causal link between the subsequent onset of dizziness and the motor accident. As the Medical Assessors in their examination findings and Medical Assessor McGrath explained, there are other non accident related conditions which could explain the cause of the vertigo.
[56] See at para 23 – 26 herein.
We note that the left shoulder has not been used as a base line as that body part, due to the other injury in 2023, is expected to have loss than average range of movement.[57]

TREATMENT DISPUTES
[57] See cl 6.51 of the Guidelines.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[58] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[58] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[59] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[59] [2018] NSWSC 1710 at [29] (Phillips).
For the reasons provided, we do not accept that the left shoulder condition is causatively related to the motor accident. However, treatment for the right shoulder condition is causatively related to the motor accident. If the treatment is for both the right and left shoulder conditions, then based on our injury findings there is a material contribution between the motor accident and the need for treatment.

Reasonable and necessary in the circumstances

Ms Martin 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,[60] Grove J stated:[61]
“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.”
[60] [2003] NSWCA 52 (Clampett).
[61] 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.[62]
[62] 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.[63] 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.
[63] 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”.
The further physiotherapy and exercise physiological treatment is not reasonable and necessary for the right shoulder condition given the extensive treatment that the claimant has received over the period since the motor accident until early 2023.
We otherwise reject the claimant’s submission that there is a requirement by a Medical Assessor, and a Review Panel, to refer to scientific/medical literature. No authority was cited in support of that submission.

CONCLUSIONS

The Panel has concluded that that the claimant’s permanent impairment is 7% which is the same as assessed by Medical Assessor McGrath. However, the assessments are different without altering the overall impairment. In those circumstances it is necessary to revoke the certificate. The medical assessment certificate is revoked, and a new medical assessment certificate is attached at the commencement of these Reasons.
The Panel has made the same findings as the original Medical Assessor for the treatment and care dispute. That medical assessment certificate is confirmed.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110°	110°
Extension	60°	60°
Adduction	40°	40°
Abduction	80°	90°
Internal Rotation	60°	70°
External Rotation	60°	50°

[2024] NSWPICMP 691

3 October 2024