Mokdassi v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Mokdassi v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 559
CLAIMANT:	Andre Mokdassi
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	7 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; multiple treatment disputes; claimant involved in a motor accident on 31 May 2017; claimant re-examined by Medical Assessors finding that claimant had ongoing injuries to neck and left shoulder; intervening work injury caused need for some of the disputed treatments; separate findings made on each of the nine treatments on the separate issues of causation and reasonable and necessary; Held – medical assessment revoked; various findings made on treatment disputes.
DETERMINATIONS MADE:	Medical Assessment – Treatment and Care Review Panel Assessment of Treatment and Care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel revokes the certificate of Medical Assessor Cameron dated 15 June 2023 and issues a new certificate determining that: The following treatment and care is not reasonable and necessary and/or not caused by the motor accident: 1. Whether 1-13 consultations with Dr Sebastian Calvache Rubio, general practitioner, between 7 September 2018 and 12 March 2020 is causally related and reasonable and necessary. 2. 1-14 consultations with Ching Hin Poon, physiotherapist, between 7 September 2018 and 13 June 2019 is causally related and reasonable and necessary. 3. 1-12 consultations with Ka Wai Gary Ng, physiotherapist, between 14 September 2018 and 8 May 2020 is causally related and reasonable and necessary. 4. Whether 1-5 consultations with Dr Eric Lim, general practitioner, between 21 September 2018 and 8 November 2019 is causally related and reasonable and necessary. 5. Whether 1-6 consultations with Hiu Tung Lee, physiotherapist, between 14 November 2018 and 30 May 2019 is causally related and reasonable and necessary. 6. Whether one consultation with Dr Tonje Vestol, general practitioner, on 9 January 2019 is causally related and reasonable and necessary. 7. Whether one consultation with Dr Bhisham Singh, orthopaedic surgeon, on 4 April 2019 is causally related and reasonable and necessary. 8. Whether one consultation with Dr Gavin Soo, orthopaedic surgeon, on 13 June 2019 is causally related and reasonable and necessary. 9. Whether 1-2 consultations with Cheuk Yin Lam, physiotherapist on 5 September 2019 and 1 October 2019 is causally related and reasonable and necessary. 10. Whether one consultation with Dr Aaron Tso, general practitioner, on 9 April 2020 is causally related and reasonable and necessary. 11. Whether 1-3 consultations with Dr Ben Dickson, general practitioner, between 11 May 2020 and 16 July 2020 is causally related and reasonable and necessary. 13. Whether 1-2 consultations with an orthopaedic specialist each year from the date of the assessment and ongoing for the remainder of the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 14. Whether 1-8 sessions of physiotherapy each year from the date of the assessment and ongoing for the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 15. Whether 1-8 sessions of hydrotherapy each year from the date of the assessment and ongoing for the remainder of the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 17. Whether one gym membership each year from the date of the assessment and ongoing for the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 18. Whether one-off pain management program from the date of the assessment or at all is causally related and reasonable and necessary. 20. Whether one-off MRI of the left shoulder from the date of assessment or at all is causally related and reasonable and necessary. 21. Whether one-off MRI of the left knee from the date of assessment or at all is causally related and reasonable and necessary. 23. Whether 1-8 tablets of ibuprofen each day from the date of the assessment and ongoing for the remainder of the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 24. Whether 1-2 tablets of Agomelatine each day from the date of assessment and ongoing for a period of nine months or at all is causally related and reasonable and necessary. 25. Whether one long handled duster and replacement every six years is causally related and reasonable and necessary. 26. Whether two car mirrors and replacements every five years from the date of assessment and ongoing for the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 29. Whether 7.23 hours each week from 2 September 2017 to 1 January 2018 for tasks including meal preparation, cooking, cleaning kitchen, window washing, spring cleaning, bed making, changing linen, gardening, grocery shopping and car maintenance or at all is causally related and reasonable and necessary 30. Whether 7.11 hours each week from 2 January 2018 to date of assessment for tasks including meal preparation, cooking, cleaning kitchen, window washing, spring cleaning, bed making, changing linen, grocery shopping and car maintenance or at all is causally related and reasonable and necessary. 31. Whether 0-8 hours of gratuitous/commercial domestic assistance for tasks including general cleaning, vacuuming, sweeping, mopping, cleaning bathrooms, hanging out washing, making the bed, changing linen, cooking, lawn mowing, gardening, outdoor maintenance, repairs, window cleaning, heavy lifting, moving furniture, grocery shopping from the date of assessment and ongoing for the claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. 32. Whether 1-6 meals each week from a meal delivery service from the date of assessment and ongoing for three months or at all is causally related and reasonable and necessary 33. Whether 1-4 meals each week from a meal delivery service from three months after the date of assessment and ongoing for a further three months or at all is causally related and reasonable and necessary.” The following treatment and care: 12. Whether 1-12 consultations with a general practitioner each year from the date of the assessment and ongoing for the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary – Period of five years at four consultations per year. 19. Whether one-off supervised exercise program from the date of the assessment or at all is causally related and reasonable and necessary. Yes 22. Whether 1-8 tablets of paracetamol each day from the date of the assessment and ongoing for the remainder of the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary. Period of five years at four tablets per day 27. Whether 10.75 hours each week from 1 June 2017 to 1 July 2017 for tasks including meal preparation, cooking, cleaning kitchen, general cleaning, dusting, mopping, vacuuming, window washing, spring cleaning, bed making, changing linen, lawn mowing, gardening and grocery shopping or at all is causally related and reasonable and necessary. 28. Whether 9.23 hours each week from 2 July 2017 to 1 September 2017 for tasks including meal preparation, cooking, cleaning kitchen, window washing, spring cleaning, bed making, changing linen, gardening and grocery shopping or at all is causally related and reasonable and necessary. Three hours per week from 1 June 2017 to 1 September 2017. RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT and is REASONABLE AND NECESSARY. The Panel does not answer question 16 as it is beyond its expertise.

STATEMENT OF REASONS

INTRODUCTION

Mr André Mokdassi (the claimant) was involved in a motor accident on 31 May 2017. The insured vehicle came out of a side street and collided with the right side of the claimant’s vehicle pushing him off the road, over the gutter, into a sign and a tree.[1]
[1] Insurer’s bundle, p 236.
The insurer is liable to pay Mr Mokdassi any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[2] Section 60 of the MAC Act.
The medical disputes set out in the referral to the Medical Assessor were:
“1.     Whether 1-13 consultations with Dr Sebastian Calvache Rubio, general practitioner, between 7 September 2018 and 12 March 2020 is causally related and reasonable and necessary.
4.    1-14 consultations with Ching Hin Poon, physiotherapist, between 7 September 2018 and 13 June 2019 is causally related and reasonable and necessary.
5.    1-12 consultations with Ka Wai Gary Ng, physiotherapist, between 14 September 2018 and 8 May 2020 is causally related and reasonable and necessary.
4.     Whether 1-5 consultations with Dr Eric Lim, general practitioner, between 21 September 2018 and 8 November 2019 is causally related and reasonable and necessary.
5.     Whether 1-6 consultations with Hiu Tung Lee, physiotherapist, between 14 November 2018 and 30 May 2019 is causally related and reasonable and necessary.
6.     Whether one consultation with Dr Tonje Vestol, general practitioner, on 9 January 2019 is causally related and reasonable and necessary.
7.     Whether one consultation with Dr Bhisham Singh, orthopaedic surgeon, on 4 April 2019 is causally related and reasonable and necessary.
8.     Whether one consultation with Dr Gavin Soo, orthopaedic surgeon, on 13 June 2019 is causally related and reasonable and necessary.
9.     Whether 1-2 consultations with Cheuk Yin Lam, physiotherapist on 5 September 2019 and 1 October 2019 is causally related and reasonable and necessary.
10.    Whether one consultation with Dr Aaron Tso, general practitioner, on 9 April 2020 is causally related and reasonable and necessary.
11.    Whether 1-3 consultations with Dr Ben Dickson, general practitioner, between 11 May 2020 and 16 July 2020 is causally related and reasonable and necessary.
12.    Whether 1-12 consultations with a general practitioner each year from the date of the assessment and ongoing for the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
13.    Whether 1-2 consultations with an orthopaedic specialist each year from the date of the assessment and ongoing for the remainder of the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
14.    Whether 1-8 sessions of physiotherapy each year from the date of the assessment and ongoing for the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
15.    Whether 1-8 sessions of hydrotherapy each year from the date of the assessment and ongoing for the remainder of the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
16.    Whether 1-12 sessions of psychological counselling from the date of assessment and ongoing for a period of six months or at all is causally related and reasonable and necessary.
17.    Whether one gym membership each year from the date of the assessment and ongoing for the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
18.    Whether one-off pain management program from the date of the assessment or at all is causally related and reasonable and necessary.
19.     Whether one-off supervised exercise program from the date of the assessment or at all is causally related and reasonable and necessary.
20.    Whether one-off MRI of the left shoulder from the date of assessment or at all is causally related and reasonable and necessary.
21.    Whether one-off MRI of the left knee from the date of assessment or at all is causally related and reasonable and necessary.
22.    Whether 1-8 tablets of paracetamol each day from the date of the assessment and ongoing for the remainder of the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
23.    Whether 1-8 tablets of ibuprofen each day from the date of the assessment and ongoing for the remainder of the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
24.    Whether 1-2 tablets of Agomelatine each day from the date of assessment and ongoing for a period of nine months or at all is causally related and reasonable and necessary.
25.    Whether one long handled duster and replacement every six years is causally related and reasonable and necessary.
26.    Whether two car mirrors and replacements every five years from the date of assessment and ongoing for the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
27.    Whether 10.75 hours each week from 1 June 2017 to 1 July 2017 for tasks including meal preparation, cooking, cleaning kitchen, general cleaning, dusting, mopping, vacuuming, window washing, spring cleaning, bed making, changing linen, lawn mowing, gardening and grocery shopping or at all is causally related and reasonable and necessary.
28.    Whether 9.23 hours each week from 2 July 2017 to 1 September 2017 for tasks including meal preparation, cooking, cleaning kitchen, window washing, spring cleaning, bed making, changing linen, gardening and grocery shopping or at all is causally related and reasonable and necessary.
29.    Whether 7.23 hours each week from 2 September 2017 to 1 January 2018 for tasks including meal preparation, cooking, cleaning kitchen, window washing, spring cleaning, bed making, changing linen, gardening, grocery shopping and car maintenance or at all is causally related and reasonable and necessary
30.    Whether 7.11 hours each week from 2 January 2018 to date of assessment for tasks including meal preparation, cooking, cleaning kitchen, window washing, spring cleaning, bed making, changing linen, grocery shopping and car maintenance or at all is causally related and reasonable and necessary.
31.     Whether 0-8 hours of gratuitous/commercial domestic assistance for tasks including general cleaning, vacuuming, sweeping, mopping, cleaning bathrooms, hanging out washing, making the bed, changing linen, cooking, lawn mowing, gardening, outdoor maintenance, repairs, window cleaning, heavy lifting, moving furniture, grocery shopping from the date of assessment and ongoing for the Claimant’s medium life expectancy (0-47 years and every year in between) or at all is causally related and reasonable and necessary.
32.     Whether 1-6 meals each week from a meal delivery service from the date of assessment and ongoing for three months or at all is causally related and reasonable and necessary
33.     Whether 1-4 meals each week from a meal delivery service from three months after the date of assessment and ongoing for a further three months or at all is causally related and reasonable and necessary.”
The medical disputes were referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 15 June 2023 (the Medical Assessment Certificate).[3]
[3] Claimant’s bundle, p 92.
The Medical Assessor found that all of the treatments were not reasonable and necessary and did not relate to the injury not caused by the motor accident.

THE REVIEW

The application for referral of the medical assessments to a review panel were made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] 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 matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties filed bundles of documents in accordance with the initial Direction.
The parties were then requested to confirm that the medical disputes (set out at [4] herein) were accurately described. The claimant advised that they were. The insurer did not respond to our direction.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[10] In Raina v CIC Allianz Insurance Ltd[11] 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.”
[10] See s 3B(2) of the CL Act.
[11] [2021] NSWSC 13 (Raina) at [65].

These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act. The observations are still pertinent to the presently constituted Panel.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident records

The pre-accident clinical notes in the four-year period prior to the motor accident do not refer to any relevant symptoms said to be caused by the motor accident.[12]
[12] Claimant’s bundle, pp 61-63, pp 74-80.
In late 2009 the claimant reported left chest discomfort radiating to the left shoulder and arm.[13] In 2010 there were complaints of left arm tightness with a history of anxiety.[14]
[13] Claimant’s bundle, p 91.
[14] Claimant’s bundle, p 92.

Treating records

The claimant first consulted the general practitioner (GP) on 1 June 2017 who noted “c/o pain whole body, specifically left knee and (back) and left wrist”.[15]
[15] Insurer’s bundle, p 61.
An initial assessment by the physiotherapist dated 9 June 2017 noted left arm and knee pain.[16] The clinical notes of the physiotherapist indicate a number of treatments over the following months.[17]
[16] Insurer’s bundle, p 108.
[17] Claimant’s bundle, pp 118-129.
A certificate dated 11 August 2017 referred to the motor accident causing “whole body ache and pain” and referred specifically to the left knee, left wrist and shoulder.[18] The clinical note at that time referred to “ongoing pain in left arm/wrist and knee and shoulder”.[19]
[18] Insurer’s bundle, p 54.
[19] Insurer’s bundle, p 48.
A physiotherapy request dated 28 September 2017 diagnosed whiplash grade 2 with referred left arm pain and soft tissue injury to the chest wall.[20]
[20] Insurer’s bundle, p 130.
In a report dated 29 November 2017, Mr Rusterholz, physiotherapist, noted that the claimant reported reduced pain at the last assessment with “some left-sided neck pain and tingling/pain in the left forearm remaining”.[21] On 15 December 2017 the physiotherapist noted the claimant had some tightness and pain in the left trapezius area and reported benefit from prescribed home exercise.[22] The physiotherapist noted that one more session was planned in the New Year, after which physiotherapy is expected to taper off.
[21] Insurer’s bundle, p 57.
[22] Insurer’s bundle, p 58.
On 24 May 2018 the GP noted ongoing left elbow pain.[23] On 26 July 2018 Dr Naser noted chronic pain in the left shoulder.[24]
[23] Insurer’s bundle, p 47.
[24] Insurer’s bundle, p 66.
An ultrasound of the left shoulder dated 9 October 2018 referred to a history of chronic pain and was described as normal.[25] The claimant returned to Dr Naser on 10 October 2018 with the ultrasound results.[26]
[25] Insurer’s bundle, p 69.
[26] Claimant’s bundle, p 69.

Claim form

The claim form dated 7 July 2017 described the motor accident and listed injuries described as nerve pain in the left knee, nerve pain in the left arm and shoulder, whiplash and neck pain.[27]
[27] Insurer’s bundle, p 238.

Subsequent accident

A hospital discharge summary dated 4 September 2018 noted injury to the right-hand occurring at work on that day (the work injury).[28]
[28] Insurer’s bundle, p 266.
On 7 September 2018 Dr Calvache-Rubio (GP) noted the claimant presented for consultation concerning injury to the hand and back noting a work injury on 4 September 2018. The GP referred to a pre-existing motor accident in 2017 and recommended that the claimant will require a multidisciplinary pain management program including referral for orthopaedic surgeon and physiotherapist.[29]
[29] Insurer’s bundle, p 262.
On 11 September 2018, Dr Bradshaw, orthopaedic surgeon, reviewed the claimant in the Fairfield Hand Clinic for the fourth metacarpal fracture sustained on 4 September 2018.[30]
[30] Insurer’s bundle, p 70.
On 9 October 2018 Dr Bradshaw noted that the fracture was progressing well, had united clinically and radiologically and there was good range of motion. The doctor noted there was some stiffness in the MCP joint which will improve with cessation of splinting and return to activities.[31]
[31] Insurer’s bundle, p 252.
On 23 October 2018 Dr Bradshaw noted that the claimant was making further progress with respect to the right-hand fracture. The doctor noted that there was tenderness of the common extensor origin possibly low-grade epicondylitis which could be related to the work accident.[32]
[32] Insurer’s bundle, p 253.
Certificates of capacity completed by the GP on 7 September 2018, 14 September 2018,
21 September 2018, 5 October 2018, 18 October 2018, 31 October 2018, 7 November 2018, 14 November 2018, 21 November 2018, 5 December 2018, 16 January 2019,
31 January 2019, 11 February 2019, 1 March 2019, 15 March 2019, 26 March 2019,
11 April 2019, 15 May 2019, 30 May 2019, 26 June 2019, 15 July 2019, 9 August 2019,
5 September 2019, 1 October 2019, 21 October 2019, 8 November 2019,
[33] Insurer’s bundle, pp 276 – 369 and pp 373 – 381.
20 November 2019, 4 December 2019, 12 February 2020, 12 March 2020, 9 April 2020 and 11 May 2020 referred to the work accident causing a right-hand fracture, lumbar spine strain and a right elbow strain caused by overcompensation.[33] The certificates specified either a total or a partial restriction of capacity for employment caused by the work injury.
Dr Gavin Soo, orthopaedic surgeon provided a report dated 2 October 2018 in relation to treatment for the work injury.[34]
[34] Insurer’s bundle, p 372.

Qualified opinions

Dr Roger Rowe, orthopaedic surgeon, was qualified by the insurer and provided a report dated 5 November 2018.[35]
[35] Insurer’s bundle, p 140.
The doctor noted an employment history that the claimant was off work following the motor accident for two weeks, returned to lighter duties as an electrician and remained in that capacity. A further work accident occurred on 4 September 2018 when the claimant fractured his right hand.
The doctor diagnosed an aggravation of degenerative changes in the cervical spine and lower back with no evidence of aggravation to the left wrist or left knee.
Dr Rowe provided a further report dated 17 May 2019 having reviewed the MRI scan of the cervical spine dated 4 December 2018.[36] The doctor opined that attending physiotherapy was providing no benefit and periodic review by a GP was required no more than three or four times per year.
[36] Insurer’s bundle, p 149.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 27 April 2019.[37] Dr Bodel noted the claimant was working as an electrician in modified duties because of his injuries, had require domestic assistance for heavy household maintenance and cleaning activities is as a consequence of the original injury but did not require ongoing domestic assistance for these activities.
[37] Insurer’s bundle, p 193.

OTHER MEDICAL ASSESSMENT

In an assessment of permanent impairment dated 20 August 2019, Medical Assessor Meakin concluded that the motor accident caused a 5% impairment of the cervical spine and a 2% impairment of the left upper extremity (shoulder).[38]
[38] Insurer’s bundle, p 164.
That medical assessment was the subject of a decision by a Review Panel issued on
19 February 2020.[39] The Review Panel found the claimant then showed demonstrated full functional mobility of the left shoulder and the cervical spine but presented with non-verifiable radiculopathy in the left upper extremity. The Panel found that the motor accident did not cause injury to the right shoulder and that the claimant had recovered from the effects of the left knee injury.

SUBMISSIONS

Claimant’s submissions dated 26 June 2023[40]

[39] Insurer’s bundle, p 174.

[40] Claimant’s bundle, p 1.

These submissions sought a review of the medical assessment certificate.
The claimant noted that the Medical Assessor initially stated that the claimant’s injuries were “not severe”.
The claimant also submitted that the Medical Assessor failed to consider each individual treatment describing it as a “global and offensive approach to discarding all treatments indiscriminately without any consideration of each item.”

Insurer’s submissions dated 29 April 2021[41]

[41] Insurer’s bundle, p 242.

The insurer submitted that the claimant’s reliability was in question as he consulted his GP the day after the accident and then did not consult him again for the two months when the claim form was completed. It noted that the claimant was subsequently injured in a work-related accident on 4 September 2018 when he fractured the fourth metacarpal of the right hand. Dr Eric Lim of Workers Doctors in a report dated 7 September 2018 then noted that the claimant would consult that practice for his “injuries”.
The insurer noted that the claimant received increased treatment under the care of workers doctors including more than 30 sessions as physiotherapy, despite reporting to Dr Rowe that he found it to be of no benefit.
The insurer submitted that there were references in the clinical notes to panic attacks in 2012, anxiety in 2010 despite the claimant reporting to Dr Ventura that there was no prior psychiatric history.
The insurer noted that the clinical records of Horsley Park Medical Centre dated
2 October 2009 and 24 March 2010 refer to ongoing pain radiating to the left shoulder, arm and hand.
The insurer submitted that the claimant sustained no more than soft tissue injuries to the neck, low back and possibly the left wrist as a result of the motor accident. It otherwise referred to the findings of the review panel dated 23 March 2020 which found that soft tissue injuries to left wrist and left knee had resolved and that the claimant regain full functional mobility of both the cervical spine and left shoulder.
The insurer noted that the claimant had received 13 sessions of physiotherapy for six months after he motor accident and that in the discharge the physiotherapist reported that the claimant was performing all preinjury work and home activities by 15 December 2017.
The insurer submitted that the claimant only sustained soft tissue injuries to the neck, low back and left wrist which caused no need for domestic assistance. It otherwise referred to the history contained in the report of Dr Rowe that the claimant did not perform domestic chores prior to or after the motor accident. It otherwise referred to the history obtained by Dr Ventura that the claimant’s wife always performed the domestic home duties in shopping. It noted that the claimant medicolegal evidence did not support the claim for domestic assistance into the future.

Insurer’s submissions dated 17 April 2023[42]

[42] Insurer’s bundle, p 474.

These submissions were filed opposing the application to review the Medical Assessment Certificate. The insurer submitted that the Medical Assessor did not have to separately assess each dispute. It otherwise submitted that the Medical Assessor did not have to refer to the totality of the evidence.

RE-EXAMINATION

Mr Mokdassi was medically examined by both Medical Assessors on 11 October 2023. The examination report is as follows:
“Mr Mokdassi attended the medical suites of PIC on 11 October 2023. He was unaccompanied. He was interviewed and examined by Medical Assessors Moloney and Couch.
Pre accident history
Mr Mokdassi stated that he was married and lives with his 3 children at home. Prior to the accident he was working full-time as an electrician and had been in that employment for about 6 years. He regularly attended the gym was an active walker and did his own gardening. Prior to the accident he states that his wife wasn’t working but did all the household chores and cooking.
History of motor accident
Mr Mokdassi was driving a work van when another vehicle collided with the right front section of his car causing his car to be pushed up against the kerb, and it was ultimately stopped by a tree. He was wearing a seatbelt at the time and states that the airbags were deployed. He was able to get out of the car and briefly laid down but there was no loss of consciousness. A passing police officer briefly, but no ambulance officers were called. He states that the one-year-old van was later declared a write-off. His brother came and drove him home. Immediately after the accident, he had pain in the left neck, low back pain and swelling of the left wrist. He also had pain in the left knee which he considers collided with the internal dashboard.
History of symptoms and treatment following the accident
Mr Mokdassi attended his GP, Dr Naser who prescribed analgesics and organised physiotherapy. He states that physiotherapy cleared the initial pain in the left knee but he later attended several other physiotherapists. He also attended the Workers Doctors Medical Centre Parramatta. They organised further physiotherapy and an MRI of the cervical spine. He was then referred to Dr Singh, a neurosurgeon who suggested cervical cortisone injections, but Mr Mokdassi declined this intervention.
Approximately 2 weeks after the accident, he resumed light duties at work on a full-time basis which was mainly involved in office work. He continued to do light duties such as supervising the other electricians on site and states that on 4 September 2018 he tripped over at a worksite causing him to fall and sustain a fracture of the right hand. This was a fracture to the right 4^th metacarpal bone and no surgery was required but was treated by a splint for 1 to 2 months. He states that WorkCover paid him to 2 months off work and he gradually increased his work hours to a maximum 28 hours per week. WorkCover had also organised a rehabilitation program which ceased about a year ago. His employment was terminated in 2020 by his boss.
Current symptoms
At present, Mr Mokdassi has persistent pain in the left side of his neck which radiates into the left forearm and is associated with pins and needles in the index and middle fingers. This wakes him at night. He is able to drive and walk freely. The left knee is now asymptomatic. Mr Mokdassi considers that has been no significant change in his symptoms in the past year. He consults his GP when needed but has no follow-up specialist appointments.
Recently his wife has return to full-time work organising payrolls which is mainly undertaken at home. His children all attend primary school and he states that his wife does all the cooking and cleaning. Mr Mokdassi no longer does any gardening. He has not returned to any employment in the past 2 years.
Current treatment
The current medication is Celebrex 100 mg about 2 per week, Maxgesic when needed and an occasional Voltaren. He also takes rapid Panadol on occasions. He consulted a physiotherapist about once per month and does his own home stretches.
Clinical examination
Mr Mokdassi walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. Mr Mokdassi is a well- muscled man and was measured at 177 cm with shoes and weight 96 kg.
Cervical spine
On inspection of the cervical spine there was a normal contour and on palpation there was tenderness on the left paravertebral region at the level of the C5/6. He was acutely tender in the left upper trapezius muscle, which was tense to palpation compared with the right. On testing range of movement, flexion was limited to 25% of expected range with the extension of 30% of expected range. Rotation was 50% of expected range bilaterally and side bending was 50% of range to the left and 60% to the right with slight asymmetry. On neurological examination of the upper limbs, reflexes were normal on the right but all reduced in the left upper arm despite reinforcement. There were no sensory changes noted on examination and there was a slight global decrease in sensation in the left arm. On measuring the circumferences of the upper limbs, the right measured 36.5 cm in the left 34.5 cm in the upper arms (10 cm above the olecranon process) and in the forearm 31 cm on the right and 30 cm on the left.
Shoulders
On palpation no muscle wasting was noted and no crepitus was detected on passive movement. Impingement tests were negative. Active measurements were measured using a goniometer and repeated 3 times. There was a slight limitation in movement of the left shoulder due to pain in the trapezius muscle.

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

180°

160°

Extension

50°

40°

Adduction

50°

50°

Abduction

180°

150°

Internal Rotation

90°

90°

External Rotation

100°

90°

Left knee
There was a full pain free range of movement of the knees with no ligament laxity and no tenderness on palpation.
Lumbar spine
Mr Mokdassi walked with a normal gait and had a full pain free range of movement of his lumbar spine with no neurological changes in the lower limbs, with normal reflexes and no sensory changes noted.”

REASONS

The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. 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[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessors’ examination report and adds the following further reasons.

Injury

The insurer’s submission that the claim of injury should be scrutinized because of a delay between the first and second attendance with the GP ignores the numerous attendances for treatment by the claimant with the physiotherapist during this period. The submission ignores relevant treating evidence, is misleading and rejected.
Having considered the medical evidence, there is clear contemporaneous account of neck, left shoulder and knee symptoms.
The Panel accepts that the claimant has ongoing soft tissue injuries to the neck with left arm pain and left shoulder injury.

Treatment disputes

The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[45] The MAC Act otherwise characterises the medical disputes as separate issues.
[45] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[46]
[46] [2018] NSWSC 1710 (Phillips) at [29].
Mr Mokdassi 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[47], Grove J stated:[48]
“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.”
[47] [2003] NSWCA 52 (Clampett).
[48] 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.[49]
[49] 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.[50] 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.
[50] 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.
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 the issue of whether treatment “relates to the injury caused by the accident”.

FINDINGS ON TREATMENT DISPUTES

The Panel notes that there are 32 separate treatment disputes which include issues of both “causation” and “reasonable and necessary”. The issues were not separated as they should have been meaning that if the answer to part of the question was no, then the entire question is answered no.
The applicant submitted that the Medical Assessor was required to provide answers to each question. The submissions have been set out earlier in these Reasons. The applicant provided no assistance on the various questions. The insurer provided limited assistance.
These reasons should be considered in light of the absence of any or limited assistance and that the applicant bears the onus of proof.

Questions 1, 4, 6, 10 and 11

These issues relate to treatment with various GPs following the work injury. The summary of the GP visits during this period,[51] as disclosed by the WorkCover certificates, relate to the work injury. This evidence shows that the treatment related to the motor accident.
[51] See paragraphs 33 and 37.
The treatment is not causally related to the motor accident.

Questions 2, 3, 5 and 9

These issues relate to physiotherapy treatment after the work injury.
The records are not before the Panel. However, on 15 December 2017 the physiotherapist noted that one more session was planned in the New Year, after which physiotherapy is expected to taper off.
We are not satisfied that physiotherapy treatment after the work injury in circumstances where this treatment had tapered off in early 2018 is causally related to the motor accident.

Question 7

This issue relates to the appointment with Dr Singh on 4 April 2019. The Panel did not find a report form Dr Singh and do not know the reason for the appointment noting that it could have been due to the work injury.
The Panel is therefore not satisfied that the appointment was caused by the motor accident.

Question 8

This issue relates to the appointment with Dr Soo on 13 June 2019. Dr Soo’s report discloses that this examination related to the work injury.[52]
[52] See paragraph 38 herein.
This treatment is not causally related to the motor accident.

Question 12

This and subsequent questions refer to various modes of treatment from the “from the date of the assessment”. We interpret this to mean the assessment undertaken by the Review Panel.
Based on our findings of ongoing symptoms caused by the motor accident and the causal need for medication, we are satisfied that there is a causal need for appointments with a GP every three months for a period of five years. Beyond that period the need is speculative and, given the nature of the soft tissue injury, unlikely to be necessary.

Question 13

Based on the clinical examination we do not accept that there is a relevant need for any future orthopaedic assessments.

Question 14, 15 and 17

The Panel does not accept that the claimant requires future physiotherapy, hydrotherapy and gym membership as, based on the clinical examination, this treatment regime is not causatively related to the ongoing injuries. These treatments are also not reasonable and necessary given the cost and lack of effectiveness.

Question 19

We accept that a one-off exercise program is suitable, low cost and effective. It provides an active regime which would provide the claimant with appropriate treatment.

Question 16

This issue concerns psychological counselling and is outside the expertise of the Panel. The original answer by the Medical Assessor is revoked as it was also outside his expertise.

Question 18

The Panel does not accept that the claimant requires a pain management program as he does not display symptoms relevant to such a need.
This proposed treatment is not caused by the motor accident and is not reasonable and necessary.

Question 20

The clinical examination by the Medical Assessors shows that there is no need for a future MRI scan of the left shoulder.
This treatment is not caused by the motor accident and is not reasonable and necessary.

Question 21

The clinical examination by the Medical Assessors shows that there is no need for a future MRI scan of the left knee as he has recovered from the left knee injury.
This treatment is not caused by the motor accident and is not reasonable and necessary.

Questions 22

The clinical examination by the Medical Assessors shows that there are ongoing cervical and left shoulder soft tissue injuries causing pain.
The claimant is taking Paracetamol (under various brand names). We accept that this medication is reasonable and necessary as a basis for pain relief because it is of minimal cost with no adverse effects. Given the nature of the soft tissue injuries we accept the need for this medication for a further five-year period at four tablets per day.

Question 23

The claimant advised that he is not taking ibuprofen as it has side effects associated with his stomach. This medication is not reasonable and necessary given the adverse side effects.
The claimant advised that he is now taking Celebrex occasionally which is reasonable and necessary although this question as not asked. Celebrex is a better alternative to Ibuprofen as it is not as irritating and just as effective. Had he determined that medication, then we would have accepted a future need for five years similar to our finding for paracetamol.

Question 24

This medication is for difficulties with sleeping. The claimant did not advise that there was any sleep disturbance caused by his injuries.
This medication is not caused by the motor accident and is not reasonable and necessary.

Questions 25 and 26

These issues relate to the future provision of a long-handled duster and replacement every six years and car mirrors.
The clinical examination by the Medical Assessors shows that there is no need for these aids, nor is it causally related to the motor accident.

Questions 27 and 28

Based on the contemporaneous evidence of the nature of the injuries, the time off work and the histories of what the claimant undertook around the home, we accept that there was a need for domestic assistance for a period of three months following the accident. That need related to the heavier aspects of domestic assistance including lawn mowing.

Questions 29 and 30

For the reasons set out above, we do not accept that there is any casual need for domestic assistance after three months. This need is not caused by the motor accident and is not reasonable and necessary.

Questions 31, 32 and 33

The clinical examination by the Medical Assessors shows that there is no need for these forms of assistance in the future, nor is it causally related to the motor accident.

CONCLUSION

For these reasons the Medical Assessment Certificate is revoked. A replacement certificate is issued at the commencement of these Reasons.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180°	160°
Extension	50°	40°
Adduction	50°	50°
Abduction	180°	150°
Internal Rotation	90°	90°
External Rotation	100°	90°

[2023] NSWPICMP 559

7 November 2023