Mun v Allianz Australia Insurance Limited
[2023] NSWPICMP 478
•27 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mun v Allianz Australia Insurance Limited [2023] NSWPICMP 478 |
| CLAIMANT: | Kyoung Su Mun |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 27 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute related to whether physical injury was a threshold injury and various treatment disputes; claimant involved in a motor accident on 18 March 2020 from rear end collision causing secondary collision; claimant sustained various injuries including to the neck and back; claimant re-examined; no basis to finding radiculopathy at any time; claimant sustained soft tissue injuries only; various treatment disputes concerning reasonable and necessary, causation and recovery; symptoms and degenerative pathology prior to motor accident; contemporaneous clinical records showed various injuries consistent with motor accident; radiculopathy not established; pain not a sign of radiculopathy; motor accident caused threshold injuries; various findings made on reasonable and necessary and causation; recovery; decision in Kotb v AAI Ltd overtaken by recent amendment; Panel has power to determine the issue of recovery by reason of the recent amendment; findings made about some treatments would improve the claimant’s recovery; Held - original assessment of threshold injury confirmed; treatment disputes revoked and new certificates issued. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 2 December 2022. Medical Assessment –Treatment and Care – Reasonable and Necessary Review Panel Assessment of Treatment and Care – Reasonable and Necessary Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 2 December 2022 and certifies that: · the specialist consultation with Dr Alan Nazha (pain specialist) pertaining to the cervical and lumbar spine; · the specialist consultation with Dr Omprakash Damodaran (neurosurgeon) pertaining to the cervical and lumbar spine; · the SPECT CT scan, TENS machine, education and fitting request and Pulsed RF-S1 DRG (bilateral) pursuant to Dr Alan Nazha dated 25 January 2021, and · the request for exercise physiotherapy in regards to the spine pursuant to is reasonable and necessary in the circumstances. Medical Assessment –Treatment and Care – Causation Review Panel Assessment of Treatment and Care – Causation Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 2 December 2022 and certifies that: · the specialist consultation with Dr Alan Nazha (pain specialist) pertaining to the cervical and lumbar spine; · the specialist consultation with Dr Omprakash Damodaran (neurosurgeon) pertaining to the cervical and lumbar spine; · the SPECT CT scan, TENS machine, education and fitting request and Pulsed RF-S1 DRG (bilateral) pursuant to Dr Alan Nazha dated 25 January 2021, and · the request for exercise physiotherapy in regards to the spine pursuant to relates to the injury caused by the motor accident. Medical Assessment – Recovery Review Panel Assessment of Recovery Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 2 December 2020 and certifies that: · the SPECT CT scan, TENS machine, education and fitting request and Pulsed RF-S1 DRG (bilateral) pursuant to Dr Alan Nazha dated 25 January 2021, and · whether request for exercise physiotherapy in regards to the spine pursuant to Dr Uook Lee dated 14 April 2021; will improve the recovery of the claimant. |
REASONS
BACKGROUND
Mr Mun (the claimant) alleges that he suffered injury in a motor accident on 18 March 2020 when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle pushing it into another vehicle (the motor accident).[1]
[1] Claimant’s bundle, p 29.
The insurer is liable to pay to Mr Mun any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues in dispute are whether Mr Mun physical injury is classified as a “threshold injury” within the meaning of the MAI Act, whether various treatment is reasonable and necessary in the circumstances, whether the need for treatment is caused by the motor accident and whether the treatment will improve recovery. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be 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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
ORIGINAL MEDICAL ASSESSMENT
The dispute was referred to Medical Assessor Wijetunga who issued a Medical Assessment Certificate dated 2 December 2022 (the Medical Assessment Certificate). Medical Assessor Wijetunga found that the motor accident caused injuries to the cervical spine and right shoulder which were minor injuries. The Medical Assessor found that the motor accident did not cause a lumbar spine injury.
The Medical Assessor found that the various treatment disputes were not reasonable and necessary or caused by the accident. The exception to this was the finding that the referral to Dr Damodaran was related to the motor accident.
The Medical Assessor otherwise found that the treatment would not improve recovery.
VARIOUS DISPUTES
The following disputes are taken from the Medical Assessment Certificate;
“Minor Injury
Whether the Cervical spine – Cervical radiculopathy caused by the motor accident is a minor injury for the purposes of the Act.
Whether the Lumbar spine – Lumbar radiculopathy caused by the motor accident is a minor injury for the purposes of the Act.
Whether the Thoracic spine – pain caused by the motor accident is a minor injury for the purposes of the Act.
Whether the Leg – Right Leg pain and numbness caused by the motor accident is a minor injury for the purposes of the Act.
Whether the Right Shoulder - pain and numbness caused by the motor accident is a minor injury for the purposes of the Act.
Whether the Right arm caused by the motor accident is a minor injury for the purposes of the Act.
Whether both hips caused by the motor accident is a minor injury for the purposes of the Act.
Cause of treatment
Whether the specialist consultation with Dr Alan Nazha (pain specialist) pertaining to the cervical and Lumbar spine relates to the injury caused by the motor accident.
Whether the specialist consultation with Dr Omprakash Damodaran (Neurosurgeon) pertaining to the cervical and lumbar spine relates to the injury caused by the motor accident.
Whether SPECT CT scan, TENS Machine, education and fitting request and Pulsed RF-S1 DRG (bilateral) pursuant to Dr Alan Nazha dated 25 January 2021 relates to the injury caused by the motor accident.
Whether request for Exercise Physiotherapy in regards to the spine pursuant to Dr Uook Lee dated 14 April 2021 relates to the injury caused by the motor accident.
Whether the physical injuries including cervical spine, hip, arm, leg and lumbar spine give rise to a need for Temazepam from February 2021 to date and continuing relates to the injury caused by the motor accident.
Reasonable and Necessary
Whether the specialist consultation with Dr Alan Nazha (pain specialist) pertaining to the cervical and lumbar spine is reasonable and necessary in the circumstances.
Whether the specialist consultation with Dr Omprakash Damodaran (Neurosurgeon) pertaining to the cervical and lumbar spine is reasonable and necessary in the circumstances.
Whether SPECT CT scan, TENS Machine, education and fitting request and Pulsed RF-S1 DRG (bilateral) pursuant to Dr Alan Nazha dated 25 January 2021 is reasonable and necessary in the circumstances.
Whether request for Exercise Physiotherapy in regards to the spine pursuant to
Dr Uook Lee dated 14 April 2021 is reasonable and necessary in the circumstances.Whether the physical injuries including cervical spine, hip, arm, leg and lumbar spine give rise to a need for Temazepam from February 2021 to date and continuing is reasonable and necessary in the circumstances.
Improve Recovery
Whether SPECT CT scan, TENS Machine, education and fitting request and Pulsed RF-S1 DRG (bilateral) pursuant to Dr Alan Nazha dated 25 January 2021 will improve the recovery of the injured person.
Whether request for Exercise Physiotherapy in regards to the spine pursuant to
Dr Uook Lee dated 14 April 2021 will improve the recovery of the injured person.Whether the physical injuries including cervical spine, hip, arm, leg and lumbar spine give rise to a need for Temazepam from February 2021 to date and continuing will improve the recovery of the injured person.”
AMENDMENTS TO MINOR INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April
2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment Certificate was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions were filed when the term was “minor injury”. Accordingly, we have used the terminology used by the parties and the original Medical Assessor for the legislation then in force.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI 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 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 (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[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 proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed respective and comprehensive bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Within these reasons we have referred to either a soft tissue injury or threshold injury interchangeably, although the latter is a wider concept as it also includes a minor psychological or psychiatric injury.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 9 of the Guidelines commenced on 15 January 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]
[10] See s 3B(2) of the Civil Liability Act 2002.
Section 3.24 of the MAI Act provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.28(3) applies for the benefit of the claimant.[11] Relevantly, the cost of treatment after six months is recoverable if the “treatment or care will improve the recovery of the injured person”.
SUBMISSIONS
Claimant’s submissions dated 21 December 2022[12]
[11] Whilst the provision has been repealed, it has been saved for claimants suffering injuries in motor accidents prior to 1 April 2023.
[12] Claimant’s bundle, p 3.
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the errors were applicable to all body parts in the assessment to be set aside in new assessment of all for all body parts and disputes. After referring to the findings of the Medical Assessor the claimant submitted that the certificate contained a number of errors, specifically:
(a) incorrectly determining causation of the back injury and failure to take into account evidence;
(b) the Medical Assessor asked the wrong question;
(c) the medical assessment made a determination outside his expertise;
(d) the Medical Assessor found to provide procedural fairness, and
(e) the Medical Assessor failed to consider the claimant’s vulnerabilities.
The claimant submitted that the findings on causation by the Medical Assessor on the issue of causation for the thoracic and lumbar spine were that the accident “does not clinically correlate”. This test was whether the motor accident contributed to injury in accordance with the Guidelines (clause 1.7 - 1.9) and the Civil Liability Act 2002. The Medical Assessor failed to consider whether there was a non-negligible contribution by the motor accident to the lumbar spine and whether the lumbar spine had been aggravated or exacerbated by the motor accident.
The claimant submitted that the Medical Assessor failed to consider the multiple and repeated early contemporaneous reports of back pain such as in the claim form, initial medical certificates and the clinical notes of Glory Medical Centre.
The claimant noted that the reports of back pain were absent from the clinical notes for some time prior to the motor accident.
The claimant submitted that the test of whether the motor accident clinically correlated with the back injury was the incorrect question. He submitted that the Medical Assessor had no expertise in biomechanics or physics in the determination of causation of injury to the lumbar spine based on a consideration of forces which was beyond his expertise.
The claimant submitted that the Medical Assessor relied on matters which do not appear to bear on the question of forces generated in the motor vehicle accident such as an absence of airbag deployment, police failing to attend, ambulance failing to attend, and the car being driveable following the motor accident.
The claimant noted that the insurer submitted that the claimant suffered minor injuries but did not submit that there was no injury to the lumbar spine caused by the motor accident.
The claimant otherwise submitted that he had a pre-existing back condition with disc dehydration at L4/5 and L5/S1 with annual fissure was at both levels such that he was vulnerable to further injury or aggravation. This was not considered by the Medical Assessor.
The claimant submitted that the lumbar spine injury is likely to be a non-minor injury and relieve relied on the opinion of the treating specialist, Dr Damodaran, who diagnosed the claimant with radiculopathy.
Insurer’s internal review dated 30 June 2021[13]
[13] Insurer’s bundle, p 493.
These submissions discuss whether the claimant suffered a minor injury.
After a comprehensive review of the materials which included a summary of pre-existing pain symptoms since 2011, the insurer submitted:
(a) injury to the cervical spine was not causally related to the motor accident. There was otherwise no evidence of complete or partial rupture of tendons, ligaments, menisci, cartilage surrounding the cervical spine, nor were there to all clinical signs are radiculopathy. Further, there was a long-standing history of neck complaints with radicular symptoms since 2014;
(b) the claimant sustained an injury to the head which was a minor injury noting that headaches are merely a symptom rather than a diagnosis;
(c) there was no injury to the left shoulder caused by the motor accident and otherwise no evidence of a complete or partial rupture of tendons, ligaments, menisci in the left shoulder;
(d) there was no evidence that any injury to the lumbar spine would be considered a non-minor injury and there were no signs of radiculopathy. Otherwise, any injury to the lumbar spine was not causally related to the motor accident. Further there was evidence that the claimant had a pre-existing lumbar spine condition dating back to 2012, and
(e) the injury to the left hip was a minor injury. This was because the X-rays revealed no fractures and there is no diagnostic imaging showing a complete or partial rupture of tendons, ligaments, menisci or cartilage. The general practitioner (GP) otherwise diagnosed a left hip strain.
Insurer’s submissions dated 27 January 2023[14]
[14] Insurer’s bundle, p 2.
These submissions opposed the application for review of the medical assessment.
The insurer noted that it did not have access to these submissions supposedly attached to the application and accordingly the claimant had not complied with the procedural direction for filing the review. Therefore, it submitted that there were no grounds for why the decision was incorrect in a material respect.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The claimant’s pre-accident medical history includes bilateral shoulder pain and neck pain (2014), right shoulder pain (2016), bilateral shoulder, neck and back pain (2016), right shoulder pain (2017) and right foot, ankle and finger pain (2020).[15]
[15] Claimant’s bundle, pp 60-68.
A referral for physiotherapy in the context of “CTP insurance” dated 3 August 2016 requested physiotherapy twice weekly for the neck, right shoulder and lower back.[16]
[16] Claimant's bundle, p 213.
A progress report by the physiotherapist dated 3 January 2017 noted the motor accident in July 2016 with limited progression in reported symptoms. The physiotherapist noted constant complaints of global soreness and global tenderness on palpation with ongoing swelling and bilateral angles consistent with signs of fibromyalgia.[17]
[17] Claimant's bundle, p 228.
The MRI scan of the cervical spine dated 11 March 2017 showed posterior disc bulges at C5/6 and C6/7 with an annular tear on the right and central at C6/7.[18]
[18] Claimant's bundle, p 88.
An ultrasound in both shoulders dated 13 March 2017 showed mild changes of insertional supraspinatus tendinosis without evidence of tear.[19]
[19] Claimant's bundle, p 89.
The MRI scan of the lumbar spine dated 13 March 2017 showed disc dehydration at L4/5 and L5/S1 with annual fissures at both levels.[20]
[20] Claimant's bundle, p 90.
Post-accident evidence
The clinical note of the GP dated 19 March 2020 referred to neck, back, right shoulder and left hip pain.[21] The note dated 21 March 2020 referred to neck and back pain.[22]
[21] Claimant's bundle, p 70.
[22] Claimant's bundle, p 71.
A certificate dated 25 March 2020 noted the claimant first attended the practice on
19 March 2020 in respect of the accident on 18 March 2020. The injuries specified in the certificate were “neck pain with right arm radiculopathy, headache, back strain, left hip strain”.[23] The certificate otherwise noted right shoulder pain and a history of neck injury from a previous motor accident.[23] Claimant's bundle, p 33.
The claim form dated 27 March 2020 recorded that the claimant suffered injuries to the neck, back, right shoulder, right arm, both hips and headache caused by the motor accident.[24]
[24] Claimant's bundle, p 28.
Chiropractic notes referred to treatment commencing on 3 April 2020 with symptoms to various parts of the body including the back, legs, neck, arms, and head.[25]
[25] Claimant's bundle, p 233.
The MRI scan of the cervical spine dated 8 April 2020 showed minor spondylitic changes only with no definitive central canal significant foraminal stenosis.[26]
[26] Claimant's bundle, p 98.
The X-ray of the pelvis and left hip dated 8 April 2020 was essentially normal with some impingement of the left side and facet joint arthritis at L4/5 and L5/S1 mainly on the right side. No acute fracture was seen.[27]
[27] Claimant's bundle, p 99.
An Allied health recovery request dated 10 August 2020 referred to whiplash injury and lower back strain with radiating pain to the legs.[28]
[28] Insurer’s bundle, p 83.
The MRI scan of the lumbar spine dated 27 August 2020 referred to a history of right sided sciatica and noted two level disc degeneration with annular tears and broad-based disc bulges at L4/5 and L5/S1. It was noted there was approximation of the S1 nerves at L5/S1.[29]
[29] Claimant's bundle, p 253.
A medical certificate dated 7 September 2020 completed by the GP referred to the motor accident causing a disc tear at L4/5 and neck spondylosis.[30]
[30] Insurer’s bundle, p 241.
On 15 September 2020 the claimant underwent a CT-guided nerve root block into the right S1 nerve root with no acute complication.[31]
[31] Insurer’s bundle, p 28.
Dr Damodaran, neurosurgeon, provided a report dated 26 October 2020 relating to consultations on 8 September 2020 and 23 October 2020.[32] The doctor noted that the claimant developed significant back pain, neck pain and bilateral hip pain including radiating pain down the right arm in the C7 distribution following the motor accident. He also noted radiation of back pain down the right leg particularly in the L5 and S1 distributions.
[32] Claimant’s bundle, p 36.
The physical examination was limited by pain with lumbar flexion and extension movements reduced. The doctor noted no lower limb or upper limb weakness or reflex deficits.
Dr Damodaran opined that the MRI scan of the lumbar spine showed mild disc prolapse at L5/S1 and annular tear at L4/5. The disc prolapse at L5/S1 appeared to be mildly compressing the S1 nerve root bilaterally. Cervical spine MRI demonstrated cervical spondylosis which was described as mild. The doctor noted that the 2017 MRI scan of the lumbar spine showed mild lumbar spondylosis with possible small annular tears at L4/5 and L5/S1. The cervical spine MRI scan in 2017 demonstrated mild disc prolapse at C5/6 and C6/7 without any major spinal cord or nerve root compression.
Dr Damodaran noted that cervical radiculopathy and axial neck pain was largely improving although the lumbar spine had become an issue particularly with radicular pain down the leg. This pain was affecting the claimant’s work as a delivery driver. The doctor recommended that the claimant see Dr Nazha for pain management and Dr Khan for rehabilitation purposes.
Dr Alan Nazha, pain specialist, provided a report dated 21 January 2021.[33] The doctor noted that the claimant had lumbar back pain with bilateral lower limb pain and penis tip pain. The doctor noted that there was lower back pain, buttock pain, bilateral heel and calf pain. He noted this appeared to be three different components which appear to be both mechanical and non-mechanical. There was no description or evidence of cauda equina.
[33] Claimant’s bundle, p 43.
Dr Nassar recommended a SPECT- CT bone scan, provision of a TENS machine to reduce reliance upon specific medication pharmacotherapy. The doctor also recommended performing pulse radiofrequency to the S1 bilaterally to help the heel pain.
Dr Azhar Khan, physician, provided a report dated 23 November 2020 and noted a normal upper neurological examination. In respect of the lower limb examination the doctor noted normal tone, power, reflexes coordination with decreased sensation in the lateral aspect of the right foot.[34] The doctor recommended that the claimant undergo a functional capacity evaluation and referral for exercise physiologist assessment.
[34] Claimant’s bundle, p 45.
The initial cost of pain management for the first hour was slightly over $400 and $158 per follow-up, consultation.[35] The cost of the supply of a TENS machine was $240 and the education and fitting fee was $344.[36] The cost of bilateral percutaneous neurotomies was approximately $2,500.[37]
[35] Claimant's bundle, p 39.
[36] Claimant's bundle, p 41.
[37] Claimant's bundle, p 42.
MEDICAL EXAMINATION
The claimant was examined by Medical Assessor Gibson on 8 September 2023. The examination report is as follows:
“Mr Mun attended accompanied by a Korean interpreter Bok Soon Yang.
Relevant Personal Details
Mr Mun completed high school in South Korea and then an undergraduate degree in electrical engineering.
He had worked as a mobile phone technician specialising in Android systems for eight years in Korea. After his arrival in Australia in 2002 he had continued in the same role at for the next 15 years. He said he had worked in his own business and he had also contracted for Telstra.
Following the earlier motor vehicle accident (in 2016), he had initially been performing more managerial work, but he had continued to work in the vicinity of 40-60 hours per week and within a 12- to 24-month period he was performing his full pre-accident job.
Mr Mun said he commenced Uber driving in 2018 and was then working in that capacity 20-40 hours per week. At the same time he was also working as a mobile phone technician for 20-40 hours per week. Therefore, by the time of the subject accident he was working in excess of 60 hours per week.
He said that since the subject accident he has continued Uber driving, but he has not returned to his mobile technical position. The reason being, that in this role he was required to remain seated for long periods, in the vicinity of six hours per day, which he finds he can no longer tolerate.
Mr Mun lives with his wife and four children. He has triplets aged 13 and an 8-year-old. His wife does not work outside of the home. He said that he does drive a car but "not much.’ However, he does work 20-30 hours per week driving an Uber.
Pre Accident Medical History
When asked about the motor vehicle accident in 2016, he said that the matter was settled 8 or 9 months later, but he was having treatment for a period of 2-3 years at which time his injuries had totally recovered. Thus, by the time of the subject accident, he was asymptomatic.
There were no other relevant medical or surgical conditions.
History Of the Subject Accident
Mr Mun said that he was driving a Nissan SUV as an Uber with two passengers in the rear seat. A vehicle in front of him stopped suddenly, so he also applied the brakes, and it was then that he was rear-ended by another vehicle. He said there were three cars involved in the accident. He had not made any impact with anything in front and there was no air bag deployment.
He recalled being jolted on impact and at that stage noticing some mild pain in both hands and his lower back. He said it was a few hours later that he noticed neck, right wrist, right hip and low back pain. At some point later he noticed pains in his legs as well.
No police or ambulance attended.
His two young passengers were apparently uninjured and were able to walk to their final destination, although he said they were only a short distance away.
Mr Mun had then driven back home. His car was drivable and later repaired. The repairs were done through insurance, so he was unaware of the cost, but he had been without the car for about two weeks. He still drives the same vehicle.
The following day Mr Mun visited his general practitioner, Dr Uook Bae Lee in Lidcombe. He was prescribed Panadeine Forte. He was referred for chiropractic treatment with NS Chiropractic in North Sydney and this commenced 3 April 2020. He said that his general practitioner had offered either chiropractic or physiotherapy referral but his preference. He attended fortnightly for several months.
He was later referred to a physiotherapist in Lidcombe and attended over a number of months.
He was referred to neurosurgeon, Dr Omprakash Damodaran, who he had initially visited on 26 October 2020. The doctor had noted that ‘Following the incident, he has developed significant back pain, neck pain and bilateral hip pain. Initially, there was radiation of the neck pain down the right arm in the C7 distribution. Over time with physiotherapy, there has been improvement in the C7 radicular pain, but the back pain has progressively worsened. There is radiation of back pain down the right leg particularly in the L5 and S1 distribution.’ On examination ‘..lumbar flexion and extension movements were reduced. There was no lower limb or upper limb weakness or reflex deficits.’ He noted ‘MRI of his lumbar spine demonstrates mild disc prolapse at L5-S1 and an annular tear at L4-5. The disc prolapse at L5-S1 seems to be mildly compressing the Si nerve roots bilaterally. Cervical spine MRI demonstrates cervical spondylosis, but this is very mild and there is no evidence of any major spinal cord compression or nerve root compression. I do not see significant discovertebral disease. In 2017, Mr Mun also had a lumbar spine MRI, which demonstrated mild lumbar spondylosis with possible small annular tears at L4-5 and L5-S1. Certainly at L5-S1, there appears to be a bigger disc prolapse on this occasion compared to before. The cervical spine MRI in 2017 demonstrated mild disc prolapses at C5-6 and C6-7 without any major spinal cord or nerve root compression.’
He was referred to a pain physician, Dr Alan Nazha, who examined him 21 January 2021 and reported as follows. ‘His main pain complaint was initially that of cervical radicular pain; however, now it is more so lumbar back pain and bilateral lower limb pain.’ ‘He has lower back pain, buttock pain, and bilateral heel pain and back of calf pain. He describes the heel pain as a burning sensation, constant dull ache with sensation of numbness. He does not describe any weakness, however. The pain is not typically shooting or lancinating down his legs.’ He notes the MRI of his lumbar spine as demonstrating mild disc prolapse at L5 and S1, degenerative disc changes and annular tear at L4/5 and possibly mild compression of the S1 nerves bilaterally. On examination there was no myotomal or dermatomal deficits in the lower limbs.
And then Dr Azhar Khan who reported on 23 November 2020. He found some sensory change lateral aspect right foot, but no other neurological abnormality of upper or lower limbs.
Mr Mun was also referred for exercise physiology. My understanding was that it was a 3-month program was proposed involving gym-based sessions, addressing in particular his low back condition. However, Mr Mun said that he had only participated in about half of the sessions as the therapist felt that he was unable to continue the program due to his pain.
Current Treatment
Mr Mun has been taking Lyrica 75mg daily for the last 3 or 4 years. He would have one temazepam tablet once or twice a month, for the last 2-3 years. He alternates Voltaren with paracetamol and estimates he would have one or the other 2-3 times a week. He applies, or has his daughters apply, a nonsteroidal anti-inflammatory cream, possibly Voltaren.
Current Complaints
Mr Mun said his neck symptoms are present sometimes, but ‘not much.’ There was slight neck stiffness today.
There is pain felt across the low back from ‘time to time’ and particularly so with changes of position.
There were no upper back complaints at all.
There is pain and numbness over the radial aspect of the right forearm and into the right thumb and thenar eminence.
There is right shoulder discomfort most of the time, and he indicated right trapezius and right deltoid regions. The shoulder pain was present today, and there was also restricted movements of his right shoulder.
When asked about any symptoms in his hips, he pointed to the right buttock region.
In reference to right leg, he said pain spreading to front of right thigh, right calf and right heel.
CLINICAL EXAMINATION
Mr Mun advised he was 175cm tall. He weighed 81kg. He was right hand dominant. He was able to walk on heels and toes and could squat fully.
Cervical Spine:
On examination of the neck, there was tenderness over the lower cervical spine in the midline with some tenderness extending into the right trapezius region. Flexion and extension was three-quarters normal, rotation was normal range bilaterally, lateral flexion three-quarters normal range bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
Upper Limbs:
On examination of the, there was symmetrical but low amplitude reflexes. There was normal power bilaterally. There was reduced sensation over the entire left upper limb. Sensory changes were non-dermatomal in distribution.
Circumferential measurements of the upper limbs were consistent with right hand dominance. Arms measuring 30cm, forearm 28cm on the right, 27cm on the left.
On examination of both shoulders there was a full normal range of movement.
Thoracic and Lumbar Spine:
There was no thoracic spine tenderness. There was lower lumbar midline and paravertebral tenderness.
Flexion and extension was to half normal, rotation was normal range bilaterally, lateral flexion three-quarters normal range bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
Lower limbs:
Circumferential measurements of the lower limbs were equal, being 44cm at the thigh and 38cm at the calf. There was normal and symmetrical lower limb power. There was reported sensory diminution over the entire left lower limb.
Straight leg raise was 60 degrees bilaterally. Neurotension signs were negative bilaterally.
Hip and pelvis:
There was no tenderness in hip or pelvic regions. Hip movements were normal and symmetrical.
Imaging
Plain x-ray cervical spine, right shoulder and lower back performed 2 August 2016 showed no acute fractures.
MRI cervical spine performed 11 March 2017 showed posterior disc bulge identified at C5/6, C6/7 and paracentral annular tear, no neural impingement, spinal canal or foraminal stenosis.
Ultrasound both shoulders performed 13 March 2017 showed mild changes of insertional supraspinatus tendinosis without evidence of tear. Mild subacromial subdeltoid bursitis.
MRI scan lumbar spine performed 13 March 2017 showed disc dehydration at L4/5, L5/S1 and at both levels annular fissures.
MRI cervical spine performed 7 April 2020 demonstrated minor spondylotic change, but no definite central canal or significant foraminal stenosis, no nerve root impingement.
CT guided nerve root block, right S1, 15 September 2020.
X-ray pelvis and left hip performed 7 April 2020 demonstrated facet arthritis at L4/5, L5/S1 mainly on the right side. CAM type impingement on the left, no major arthritis, no acute pelvic or femoral neck fracture.
MRI lumbar spine performed 27 August 2020 demonstrated lower two level disc degeneration with annulus tears, broad based disc bulges approximation of S1 nerves at L5/S1, lower lumbar facet arthritis described.
Conclusions
Mr Mun is a 44-year-old man who was involved in the subject accident on
18 March 2020. He sustained soft tissue injury to his neck and upper and lower back. There was no evidence to suggest separate injuries to right leg, right arm or right hip, although there had been referred pain into both upper and lower limbs.There was no evidence of radiculopathy of either upper or lower limbs at the time of Panel examination.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[38] and Insurance Australia Ltd v Marsh.[39]
[38] [2021] NSWCA 287 at [40], [41] and [45].
[39] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[40] that radiculopathy can be present at any time to establish that it is not a threshold injury for the purposes of the MAI Act.
[40] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[41] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[41] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Gibson and adds the following reasons.
The contemporaneous evidence supports complaints of pain to the neck, back, right shoulder and left hip.
The motor accident by all accounts was relatively mild given various factors such as lack of airbag deployment, passengers leaving and not requiring treatment, the car being driveable following the motor accident, no ambulance was called, and the claimant did not attend hospital. Whilst some of these factors may require biomechanical expertise (such as absence of airbag deployment), it is either within the specific expertise of the Panel and/or within commonsense inferences that the impact of the accident would not have been significant.
It is otherwise within the expertise of the medical practitioners on the Panel that an impact of lower speed is less likely to cause serious injury. However, that is a generalisation subject to the claimant’s specific circumstances.
Cervical spine
The MRI scan of the cervical spine dated 8 April 2020 showed minor spondylitic changes only with no definitive central canal significant foraminal stenosis.[42] The MRI scan of the cervical spine dated 11 March 2017 as reported as showing posterior disc bulges at C5/6 and C6/7 with an annular tear on the right and central at C6/7.[43]
[42] Claimant's bundle, p 98.
[43] Claimant's bundle, p 88.
We accept that the claimant sustained a soft tissue injury to the cervical spine caused by the forces imposed on the neck when the car stopped. We are not satisfied that the motor accident caused any structural pathology in the cervical spine although the accident probably aggravated the pre-existing degenerative changes.
There are various references to referred pain, particularly in the right arm. Referred pain is not an objective sign of radiculopathy. On our reading of the clinical notes, we could not identify any objective signs of radiculopathy in the upper limbs. The examination findings of Medical Assessor Gibson otherwise did not identify any objective signs of radiculopathy.
Lumbar spine
We agree with the claimant’s submission that he had underlying pathology with disc dehydration and annual fissures at L4/5 and L5/S1[44] such that he was vulnerable to further injury or aggravation. However, we are not satisfied on the balance of probabilities that a mild rear end collision where the lumbar spine is protected by the car seat would cause anything other than an exacerbation of pain of that pre-existing condition. That conclusion is consistent with the contemporaneous evidence that the claimant did not require emergency treatment and the contemporaneous complaints which were only suggestive of strain.
[44] See [49] herein.
It is likely that the pre-existing degenerative lumbar spine would deteriorate of its own accord particularly as there was clear degenerative pathology at two levels shown in the 2017 MRI scan. We do not accept that it is likely that the motor accident caused any further deterioration in pathology particularly considering the modest nature of the motor accident.
The examination findings of Medical Assessor Gibson do not establish any signs of radiculopathy in the lumbar spine.
The records show repeated references to complaints of leg pain. However, pain is not an objective sign of radiculopathy as defined in the Guidelines. The only verifiable sign of radiculopathy that we identified in the clinical records was the reference by Dr Khan in 2020 to decreased sensation in the lateral aspect of the right foot. That is insufficient to satisfy the test for radiculopathy under the Guidelines.
We otherwise note that leg pain (like arm pain) is not a discrete injury but often non-verifiable radicular pain from the back or neck. In the present matter the referred arm pain from the neck and leg pain from the back were not discrete injuries.
Left hip
The contemporaneous records show complaints of left hip pain. The relevant X-ray dated
7 April 2020 was essentially normal. It is likely that the claimant suffered a mild left hip strain. There is no evidence of any pathological change caused by the motor accident to the left hip and the condition had recovered based on the recent examination findings.
Right shoulder
There is a pre-accident history of right shoulder pain with contemporaneous complaints of right shoulder problems following the motor accident.
There is no evidence of right shoulder pathology caused by the motor accident and no diagnosis of any right shoulder injury. It is plausible that that the claimant suffered a right shoulder strain caused by very mild forces imposed through the seatbelt over the right shoulder.
It is extremely unlikely that a mild rear end collision would otherwise cause injury to the right shoulder by way of pathological change.
Thoracic spine and right hip
There were no contemporaneous recorded complaints of thoracic spine and right hip pain.
There were no radiological scans showing any injury.
The recent medical examination showed no symptoms in these areas.
In light of these three matters, any injury to these parts was modest if at all and limited to a mild soft tissue injury.
Conclusion on threshold injury
Accordingly, we are satisfied that the claimant’s injury is a threshold injury within the meaning of the MAI Act. We are not satisfied that the motor accident caused an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The injuries were likely soft tissue and meet the definition of threshold injuries.
There is otherwise no evidence of two objective signs of radiculopathy in the upper or lower limbs.
Does the 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.[45] 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.
[45] [2019] NSWCA 324.
There only needs to be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[46] 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.
[46] [2018] NSWSC 1710 at [29] (Phillips).
These principles are consistent with Court of Appeal decision in McKenzie v Wood[47] where the Court noted that urgent medical intervention that would have been undertaken in due course established that the costs of surgery should be recovered.
[47] [2015] NSWCA 142 (McKenzie).
Based on our injury findings, we accept that the claimant sustained injuries to the neck and to the back with continuing symptoms. The referral to Dr Damodaran and the pain specialist (Dr Nazha) with associated treatment (such as a TENS machine) is causally related to the motor accident because of the ongoing pain in the neck and low back. Similarly, the request for exercise physiology is also related to the motor accident because of the relationship with the ongoing pain in the cervical and lumbar spine.
Temazepam is for short term relief to address insomnia. We do not accept that this medication is related to physical injuries. The medication is highly addictive and only appropriate for the short term.
Reasonable and necessary in the circumstances
Mr Mun 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,[48] Grove J stated:[49]
“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.”
[48] [2003] NSWCA 52 (Clampett).
[49] 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.[50]
[50] 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.[51] 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.
[51] 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 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 claimant was referred to Dr Damodaran probably because there were radicular complaints (not radiculopathy). It is reasonable and necessary in those circumstances that the claimant be assessed by a specialist for any precise neurological signs.
The specialist consultation with Dr Alan Nazha (pain specialist) pertaining to the cervical and lumbar spine is reasonably and necessary in the circumstances. The claimant undoubtedly was pain focused and treatment by a pain specialist is medically appropriate and acceptable as necessary for the claimant’s pain syndrome at minimal cost. Similarly, the various pain management treatments recommended by Dr Nazha are low cost, medically acceptable and appropriate for the claimant’s pain condition.
An exercise physiologist provides specific clinical exercise programs for the rehabilitation process. This was entirely appropriate for the claimant as part of the rehabilitation process due to his pain condition and deconditioning. This is a low-cost treatment with no downside and designed to improve the claimant’s condition.
We do not accept that the prescription of Temazepam was reasonable and necessary. The medication is highly addictive with deleterious effect if prescribed on an ongoing basis.
Recovery
In Kotb v AAI Ltd[52] the Panel noted that the MAI Amendment Act repealed Schedule 2,
cl 2(c) of the MAI Act and otherwise contained no savings provision. Accordingly, from1 April 2023 the issue of whether treatment or care will improve the recovery was not a medical assessment matter and a Panel has no power to determine that dispute.[52] [2023] NSWWPICMP 312 (Kotb).
A Regulation was made on 22 September 2023 specifying that Schedule 2, cl 2(c) continued to apply in relation to a motor accident occurring before 1 April 2023.[53] The Regulation is taken to have commenced on 1 April 2023.
[53] Motor Accident Injuries Amendment Regulation, 2023.
Accordingly, the absence of power identified in Kotb by a Medical Assessor and a Review Panel to determine the issue of recovery has been overtaken by the recent amendment.
The treatments recommended by Dr Nazha are and were designed to moderate the claimant’s perception of pain and otherwise designed to reduce his medication intake. We accept that these treatments would improve the claimant’s recovery.
We also accept that exercise physiology would improve the claimant’s recovery. The whole point of such treatment is to provide the claimant with an active basis to assist in the recovery for a person who has deconditioned following injury.
For similar reasons to our comments on reasonable and necessary, the ongoing use of Temazepam is highly addictive and will not assist in recovery.
CONCLUSION
For these reasons the certificate for the threshold injury is confirmed. The certificates for the various treatment disputes are revoked. The new certificates are attached at the commencement of these Reasons.
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