Nadasy v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 224
•1 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Nadasy v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 224 |
CLAIMANT: | Gabor Nadasy |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Sophia Lahz |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 1 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificates (MAC); degree of permanent impairment and treatment and care disputes; claimant was the seat-belted driver of a station wagon when his vehicle was struck from behind by the insured truck; claimant was able to alight from his vehicle and exchange details with the other driver; claimant recalls the onset of neck and low back pain over the next few days; insurer denied liability to pay statutory benefits beyond 26-weeks; Medical Assessor (MA) certified 10% whole person impairment (WPI) for accident-related injuries to cervical and lumbar spine; found various injuries not caused by subject motor accident; Review Panel made the same causation findings and confirmed WPI certificate; MA found weekly physiotherapy for spinal injuries not necessary or reasonable in the circumstances; Review Panel found proposed treatment necessary and reasonable for 3-months post-accident but not thereafter; the natural history of such soft tissue injuries is for recovery to occur within a 6-12 week window as rationale for recommended duration of the assistance; no issues of principle; Held – MAC relating to WPI confirmed; MAC relating to care revoked and replaced. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGRE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel confirms the Certificate dated 6 May 2024. CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 2. The Review Panel revokes the certificate dated 6 May 2024 and issues a new certificate determining that the following treatment and care: i. cervical spine-two half hours OR one hour of physiotherapy sessions weekly, and ii. lumbar spine-two half hours OR one hour of physiotherapy sessions weekly. IS REASONABLE AND NECESSARY in the circumstances for a period of three months after the date of the subject motor accident but not thereafter. |
STATEMENT OF REASONS
INTRODUCTION
On 22 January 2021, Gabor Nadasy (the claimant) was the seat-belted driver of a station wagon travelling along the M1 at Mooney Mooney when his vehicle was struck from behind by the insured truck. The claimant’s car was struck on the left rear aspect and spun clockwise into the right lane. There was no secondary impact. Neither Ambulance nor Police Officers attended. The claimant was able to alight from his vehicle and exchange details with the other driver. He continued driving to Byron Bay. The claimant recalls the onset of neck and low back pain over the next few days. Upon his return to Sydney, the claimant attended his local medical officer, who referred him for physical therapy and provided analgesia.
Insurance Australia Limited t/as NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
The insurer denied liability to pay statutory benefits beyond 26 weeks on the basis that all of the claimant’s alleged injuries relevantly are threshold injuries for the purposes of the Act. The insurer did not concede that the claimant’s accident-related injuries gave rise to whole person impairment (WPI) greater than the 10% threshold.
ASSESSMENT UNDER REVIEW
There is a dispute between the parties about:
· the degree of permanent impairment under Schedule 2, cl 2(a) of the Act; and
· whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, cl 2(b) of the Act.
The claimant was referred by the Personal Injury Commission (Commission) for assessment by Medical Assessor Alan Home who certified on 6 May 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 10% AND IS NOT GREATER THAN 10%:
· Cervical spine
· Lumbar spine
Medical Assessor Home assessed 5% WPI for the cervical spine and 5% WPI for the lumbar spine. He made no apportionment, no allowance for pre-existing/subsequent conditions, and no adjustments for treatment effects.
Medical Assessor Home also certified as follows:
The following treatment and care:
Cervical spine: 2 half hour OR 1 hour of physiotherapy sessions weekly
Lumbar spine: 2 half hour OR 1 hour of physiotherapy sessions weekly
IS NOT REASONABLE AND NECESSARY in the circumstances.
Medical Assessor Home also found that the following injuries WERE NOT caused by the motor accident:
· left arm: numbness in left hand;
· left hand: numbness in in left hand;
· thoracic spine: injury to the thoracic spine;
· buttocks (glut): injury to the left buttock, and
· left leg: injury to the left leg and numbness radiating to the left leg from back.
Although he made those findings, Medical Assessor Home did not so certify.
THE REVIEW
The claimant sought a review of Medical Assessor Home’s certificate on the basis that the assessment was incorrect in a material respect, within the meaning of s 7.26 of the Act, based upon the particulars set out in the application and supporting documentation.
The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submits that Medical Assessor Home’s reasons “are opaque” and he has failed to provide sufficient reasons to support the findings that he made. The claimant submitted rhetorically as follows:
“Why was causation not found? What is the diagnosis in each area? What is the cause of the applicant’s apparent pain? These need to be considered for each area of injury.”
The claimant made submissions in relation to causation. It also was submitted that the Medical Assessor did not undertake the examination required by the Guidelines, or alternatively, has not recorded his findings.
The claimant submitted that the Medical Assessor considered that the claimant actually did have radiculopathy at an early stage. However, the Medical Assessor did not specify what signs that he considered the claimant did have at that early point and what has altered.
In relation to the treatment dispute, the claimant’s submissions were limited to the Medical Assessor’s alleged failure to provide adequate reasons as to why he disagrees with the two half hour or one hour of physiotherapy weekly sessions.
Overall, the claimant submitted that he simply could not understand the Medical Assessor’s reasoning and has had to make surmises as to it. The claimant says that he simply could not understand why he lost.
The claimant’s review application was opposed by the insurer on various grounds. It is not necessary to deal with those grounds in detail, as they were not accepted by the President’s delegate. Briefly, the insurer submits that Medical Assessor Home provided a detailed and adequate reasoning that the physiotherapy treatment to the cervical spine and lumbar spine cannot be considered reasonably necessary treatment in the circumstances. The insurer disagreed that Medical Assessor Home erred in relation to his assessment of cervical spine and lumbar spine permanent impairment.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 17 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s failure to provide a clear path of reasoning, concerning his assessment and diagnosis taking into consideration all the available evidence, and does how he arrived at the ultimate determination.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to re-assess all of the injuries referred to Medical Assessor Home. The claimant provided her treating doctors’ clinical notes and diagnostic scan images/reports, relating to the injuries referred for assessment, in compliance with directions for production made by the Review Panel on 8 October last.
OTHER ASSESSMENTS
Medical Assessor Thomas Rosenthal certified on 24 June 2023 as follows:
The following injury caused by the motor accident:
· Cervical spine – soft tissue injury
· Thoracic spine – soft tissue injury
is a THRESHOLD INJURY for the purposes of the Act.
The following injury caused by the motor accident:
· Lumbar spine – L4/L5 acute annular tear with radicular symptoms in the left leg
is not a THRESHOLD INJURY for the purposes of the Act.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission .
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] 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.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) claimant’s submissions for Review Panel dated 30 May 2024 (see previously);
(b) PIC Certificate of Medical Assessor Alan Home dated 6 May 2024 (see previously)’
(c) medical referral for permanent impairment and treatment disputes dated 13 April 2024 (see previously);
(d) application for personal injury benefits dated 12 February 2021;
(e) certificate of Capacity dated 23 February 2021, and
(f) claimant’s statement dated 23 November 2023.
Radiological Scans
(g) MRI cervical spine report and images dated 12 May 2021;
(h) MRI thoracic spine report dated 12 May 2021;
(i) MRI lumbar spine report and images dated 21 July 2021.
(j) MRI spine report and images dated 14 February 2022;
(k) CR EOS spine and leg standing report and images dated 28 March 2024, and
(l) MRI cervical spine report and images dated 28 March 2024.
The diagnostic scans are briefly described in the examination report. They are more fully described by Medical Assessor Home as follows:
· MRI cervicothoracic spine dated 12 May 2021: Small paracentral disc protrusion at C5/C6. Possible C6 nerve root impingement.
· MRI lumbosacral spine dated 21 July 2021: At L4/L5 disc desiccation. Small annulus tear. Mild annular bulge. At L5/S1 degenerative changes with narrowing of the disc and Type 2 Modic changes. Minor annular bulge, marginal osteophytes. No comprise of the canal or nerve roots.
· MRI cervical spine dated 13 February 2022: Cervical spine, minimal left posterior disc bulge at C3/C4 and C5/C6. Lumbar spine, L4/L5 mild broad-based posterior disc bulge with small subarticular disc protrusion, posterior annulus fissure, disc material is abutting the descending left L5 nerve root. L5/S1 moderate right foraminal narrowing with flattening of the exiting right L5 nerve root. Disc osteophytes complex abutting the exiting L5 nerve root just outside the foramen without nerve impingement.
· EOS full spine dated 14 April 2022: Flexion and extension fuse demonstrated normal movement of the cervical spine. Flexion and extension of the lumbar spine showed border line Grade 1 retrolisthesis at L5/S1.
· EOS whole spine long leg standing dated 28 March 2024: At C2/C3 slight anterolisthesis which resolves in a neutral and extended positions. At C3/C4 slight retrolisthesis in the extended position resolves in the flexed to neutral positions. The lumbar spine at L3/L4 slight retrolisthesis in the extended position, resolving in flexed to neutral positions at L5/S1. Slight retrolisthesis in the flexed position resolving in extended and neutral positions. Prominent disc degenerative changes with end plates sclerosis and reduced disc height.
· MRI cervical spine dated 28 March 2024: Left paracentral disc osteophyte complex with left posterior annulus fissure at C5/C6. Left paracentral osteophyte complex with left posterior lateral annulus fissure with mild left foraminal stenosis at C6/C7. T2 hyper intense extra-dural CSF signal structure in the medial aspect of the left neural exit foramen at C6/C7 which may represent a perineural cyst.
· MRI lumbar spine dated 28 March 2024: At L1/L2 and L2/L3 normal. At L3/L4 minimal bilateral facet arthrosis. At L4/L5 a postural central and left postural central disc protrusion with annulus fissure contacting and traversing left L5 nerve root in the left subarticular recess. Minimal fluid in the facet joints. At L5/S1 Type 3 end plate Modic changes with mixed fatty changes and chlorosis but no oedema. The disc hype is severely reduced. There is a mild to moderate disc bulge which in combination with mild to moderate bilateral arthrosis results in moderate right and mild left foraminal stenosis.
The Medical Assessors accept the accuracy of Medical Assessor Home’s description of the diagnostic scans which they adopt.
Treating Specialist’s Reports
(m) Report dated 21 December 2022 by Dr Davor Saravanja, spinal and orthopaedic surgeon, to Dr Richard Sacks (treating GP);
Dr Saravanja reports a recent significant episode of back pain on the right side radiating into the leg which settled with heat packs and conservative treatment. Dr Saravanja also records neck pain radiating down into the left upper limb with sensory change. Spurling’s test was positive on the left side. The plan was to continue with physiotherapy and to review on an as needed basis. Dr Saravanja opined that the claimant eventually would come to the surgery which was accelerated because of the accident.
(n) Report dated 23 August 2023 by Dr Saravanja to Dr Sacks;
Dr Saravanja records worsening neck and low back issues. Four weeks ago, the claimant developed significant pinched nerve pain in the neck, which settled. More recently, he developed significant limping. He was developing back and gluteal muscle spasms with significant deterioration in the last four to five weeks. Active range of motion was reasonable but associated with stiffness and spasming to the left with left rotation and left lateral flexion particularly causing discomfort and pain. Dr Saravanja was to organise further diagnostic investigations because of the deteriorating symptoms and flares.
(o) Report dated 9 April 2024 by Dr Saravanja to Dr Patel;
“He had a significant motor vehicle accident when he was a driver in January of 2021. He was hit in the back corner and span around. This impacted his neck and lower back. A few days later, he developed left upper limb pain as a consequence. He has had physiotherapy. He has been investigated. He presents today over three years following his accident with worsening neck and lower back discomfort, which is chronic now and it is associated with a significant degree of left upper limb numbness and paraesthesia and left lower limb numbness and paraesthesia. His left leg gives way if he tries to run. He also feels that his left arm is at times weak.
EOS and MRI scans have been done since his last review. This demonstrates a retrolisthesis at L3/L4 and L5/S1 with active range of motion flexion-extension views. Cervical alignment has been preserved. Significant disc height loss at L5/S1. The MRI scans, the left C6/C7 has a disc and perineal cyst which could be reflective of the trauma and a left C5/C6 disc. His lumbar MRI demonstrates a left L4/L5 disc annular tear with fissure formation and left L5/S1 changes with global L5/S1 decreased disc height and secondary degenerative changes, including Modic end plate changes.
I have suggested physiotherapy, possible cortisone injection in the left C5/C6 foramen to decrease swelling around the left C6 nerve root. If he develops a radicular pain in that profile and if all fails down the track, he may require surgical consideration. The requirements….. would be persistent radiculopathy which is not responding to physiotherapy or cortisone injections, or a demonstrated mechanical cause for instability and associated pain.“
(p) Report dated 31 July 2024 by Dr Saravanja to Dr Patel;
Dr Saravanja records worsening pain in the neck and lower back. He has neck pain radiating to both trapezius regions, electric shooting pains down the left arm in the C7 and sometimes C6 distribution. He has also some left buttock pain and left leg paraesthesia in the L5 distribution with low back discomfort. In the mornings, the neck is the worst, in the evenings, the lower back is the worst. Clinically, he is not myelopathic. He is suffering from a radiculopathy affecting the C6 or C7 nerve root on the left.
(q) clinical notes and reports of other treatment providers;
(r) clinical notes of Dr Saravanja as at various dates;
(s) clinical notes of Dr Richard Sacks as at 18 December 2024;
(t) report of Mr Tim Ellis, physiotherapist, dated 1 March 2024, and
(u) report of Mr Conor Murphy, physiotherapist, dated 30 July 2024.
THE CLAIMANT’S IME REPORT
Report dated 1 December 2023 by Dr Wy Kai Lee, orthopaedic surgeon, to the claimant’s lawyers;
Dr Lee provided a diagnosis of disc injury to the cervical spine and lumbar spine, resulting in neck pain and back pain, which radiates down into his left arm and left leg. Dr Lee thought the claimant’s prognosis was fair as the symptoms are bearable. The prognosis in terms of improvement is guarded. Dr Lee assessed 5% WPI for the cervical spine, 10% WPI for the lumbar spine and 0% WPI for the shoulders.
MISCELLANEOUS
Stair’s video of the claimant filmed in July 2024.
The insurer relied upon the following material which the Review Panel has considered:
1. Insurer’s review submissions dated 17 June 2024 (see previously).
The remainder of the insurer’s material largely overlap with the claimant’s material.
EXAMINATION REPORT
The report of Medical Assessor Clive Kenna and Medical Assessor Sophia Lahz is as follows:
ASSESSMENT REPORT OF GABOR NADASY
Who attended the assessment?
Gabor Nadasy is a 49-year-old male who was seen at the Commission rooms on 6 February 2025 in relation to an ongoing dispute regarding a motor vehicle accident of 22 January 2021.
He was seen by two Assessors: Drs Sophia Lahz and Clive Kenna.
HISTORY
Pre-accident medical history and relevant personal details
Mr Nadasy is a 49-year-old male in a defacto relationship. His stepdaughter is 15 years of age and he has one child aged six.
He is working as a manager involved in the building industry, current full-time, but is avoiding any use of ladders and working at height.
Although he is working full-time, he has a restricted light duties certificate essentially working in the office. He is now doing less onsite work as a result of lack of mobility.
With regards to past history, it is to be noted that he has had two operative procedures pertaining to the left knee – details discussed later-unrelated to the car accident.
He states he was in good health prior to the motor vehicle accident but did acknowledge that at age 20 he underwent a left knee ACL reconstruction after a skiing accident and stated at the time of the motor vehicle accident, the knee was symptomatic but only minimally and didn’t prevent him from a range of normal activities.
Prior to the motor vehicle accident, he was also very active in the gym and also would be involved in activities such as running, surfing and skipping.
By way of background, he is a non-drinker and non-smoker.
With regard to subsequent symptoms post-accident, he states that he has ongoing symptomatology related to the neck, left upper limb, as well as lower back with left lower limb symptoms. Also as a result of reduced physical activity, he has now put on about 15kg over the last three years.
History of the motor accident
On 22 January 2021, he was driving a Volkswagen Superb wagon which was stationary in a traffic jam on the M1 near Woy Woy. He and his family were heading to Byron Bay on a holiday when suddenly and without warning, a large truck with bull bar rear-ended his vehicle on the left side, causing his VW wagon to move towards the right, but there was no secondary impact.
He was unsure if there was any impact to body parts within the cabin, aside from possibly the left hip and buttock hitting the door. Nevertheless, he states that there was some bruising in that area. He was somewhat shocked by the unexpected accident. He was able to exit the vehicle.
Ambulance did not attend, nor did police, but he subsequently did make a delayed report to a police station.
History of symptoms and treatment following the motor accident
He proceeded onto Byron Bay but noticed in the following few days there was severe neck, middle back and lower back stiffness.
Upon returning, he saw his GP, Dr Sacks of Warringah, who noted reduced general mobility and stiffness.
Subsequently physiotherapy was arranged and funding eventually ceased but he continued to then self-fund until early 2024. This was accompanied also by a strengthening program at the gym. He continued to attend the gym, self-funding, in which he would use the treadmill, bicycle and light weights.
With regards to development of symptoms post motor vehicle accident, he stated that as the initial bruising and acute tenderness abated, he noticed numbness involving the left arm and left leg. Dr Lahz initially asked him how long this occurred after the accident, although he unsure but it was possibly a few months.
With regards to the left arm, there were symptoms of tingling and numbness, most prominent in the middle and ring fingers. In the left leg there was tingling and sensation of numbness in the lateral four toes, with sensory preservation of the big toe.
Initially it was considered that he had sustained injuries to the cervical and thoracolumbar spine, but his GP did refer him through to a neurosurgeon, Dr Saravanja, who noted the interscapular symptoms, middle back, likely referred from the cervical spine.
Throughout there has never been any bowel or bladder dysfunction.
That post-accident, he underwent a number of MRI scans dating back to initially 2021, 2022 and then subsequently 2024, stating that he understood that the x-rays confirmed disc bulges. That subsequently those reports were as follows:
MRI cervical spine dated 12/5/2021 showed small paracentral protrusion at C5/6 with some thecal deformity but no cord compression. There was probable stretching of the C6 nerve root requiring clinical correlation.
Six months post motor vehicle accident – MRI of the lumbar spine dated 21/7/2021 showed L4/5 annular tear with small annular bulge without significant foraminal or canal stenosis. At L5/S1 there was degenerative disc changes with reduced height associated with Modic changes. Mild bulging and marginal osteophytes with nerve root nor canal compromise.
Cervical MRI on 13/2/2022 showed minimal left bulging at C3/4 and C5/6.
Lumbar MRI on 13/2/2022 showed L4/5 posterior mild bulging with abutment at L5 root and L5/S1 versus right L5. There was some abutment of the left L5 from discophyte (he did say there had been occasional right lower limb symptoms, although the vast majority of the lower limb symptoms since the 2021 accident had been on the left).
MRI cervical spine dated 28/3/2024 showed left paracentral C5/6 disc and posterolateral C6/7 with fissure herniations.
MRI lumbar spine dated 28/3/2024 showed marked L5/S1 degenerative change, again with Modic changes and reduced disc height associated with mild to moderate disc bulge and mild to moderate facet osteoarthritis causing moderate right and mild left foraminal stenosis. There was left L4/5 disc herniation associated with a large annular tear. There were some notes in the request noting obviously left peroneal weakness on walking down stairs at the end of the day.
That post-accident he was off work for a period. He continued to struggle at work due to his ongoing symptoms and reduced mobility.
Subsequently he left that employer and then worked for several other similar businesses in the meantime, as he was trying to combine work with his parenting commitments. Then about 18 months ago he found full-time work with a small employer who were flexible with regards to his arrangements.
As noted, his GP referred him through to neurosurgeon, Dr Saravanja, who he initially saw in February 2022. He underwent a steroid injection to the left C5/6 on 17 March 2022 which proved effective in substantially resolving the left upper limb pain, but still had intermittent symptoms, although they were now more induced by neck movements rather than static level of symptoms which was constantly present previously.
In that respect, Dr Saravanja’s records of 2022 indicated some concern about left C6 nerve injury, although surgery was not immediately necessary. At the time, there were also complaints of left hand clumsiness with dropping items from the hand. Noting the records refer to left upper limb pain with neurological symptoms, numbness in C6 and also left lower limb pain with neurological symptoms, tingling and numbness at L5 (note the first consult in February 2022 notes right lower limb symptoms, although the claimant believes that this is a typo). Furthermore, there were references to the left foot turning in when tired.
When reviewed by Dr Saravanja in 2024, there was a further recommendation for both cervical and lumbar spine injection.
In relation to such, pertaining to the left knee and being on uneven ground on worksites, he did trip and re-injured his left knee. At that stage, he said the left ankle was turning in.
Dr Lahz noted at the time, “I pressed him on whether the ankle weakness had been present before the knee surgery and he said it had been. It occurred to me that he could have some peroneal nerve weakness from surgery?”
The knee became painful as well as grossly unstable after use and minimal discomfort and good stability. There were several falls on this basis and in 2023 he underwent two surgeries to the left knee; the first to clean up the left knee and the second for insertion of a graft to the ACL.
To that extent, he states he has made a good recovery. That the knee feels once again more stable with reduced pain.
Current symptoms
With regards to his current symptoms, he complaints of localised neck pain which radiates a little bit towards the left shoulder but not quite. There is no right shoulder pain or scapulothoracic symptoms.
Associated with this is moderate pain down the back of the left upper arm to the elbow and some lateral discomfort over the left lower forearm.
Pertaining to the back, there is a complaint across the lower back, fairly widespread involving both buttocks, and a complaint of symptoms down the back of the left leg which then hooks around to involve the anterior and lateral shin, with slight referral of symptoms over the dorsum of the foot. There were no such symptoms involving the right lower extremity.
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of ROM (where applicable) of each of the injuries assessed.
He presented as a man of 184cm (measured) and 108kg. He was strongly built with broad shoulders.
At the commencement of the examination, he was asked to make his best efforts, noting there were frequent pain complaints throughout the examination, mostly on being asked to move involving the lower back or the neck.
Pertaining to the observation of posture, shoulders were level, there was no thoracic kyphosis.
Cervical spine
On examination of mobility of the cervical spine, he complained of painful rotation particularly to the left, with good neck flexion but extension was also complained of being painful and reduced.
Upper arms were measured at 35cm right and left. Forearm measurements were 31cm on the right and 30.5cm on the left (difference can be explained by right hand dominance).
Neurological examination of the upper extremities revealed preserved upper limb power in all muscle groups, with no muscle wasting.
There was a complaint of reduced sensibility as noted involving the left upper extremity, but primarily in a non-dermatomal pattern, noting reflexes were symmetrically preserved.
Clinical examination of both shoulders indicated a full range of movement, motion being symmetrical with no rotator cuff pathology on testing.
Thoracic spine
Examination of the thoracic spine was normal with full range of movement and no muscle guarding and no neurological deficit.
Lumbar spine
There was slight flattening of the lumbar lordosis with a complaint of tenderness at L5/S1, although no muscle spasm or guarding was noted.
On clinical examination, there was evidence of asymmetry of movement. Lumbar flexion was approximately 50% normal range but extension was to two-thirds normal. Both were associated with pain complaints. Lateral flexion was symmetrical to 75%, three-quarters normal range, although he stated the left lateral flexion increased his left leg symptoms.
The left thigh measured 47cm, 2cm less than the right thigh at 49cm. These were measured above the superior pole of the patella. The calves were symmetrical at 40cm.
Lower limb neural tension signs were negative bilaterally. He could sit on the edge of the bed with his legs fully extended, i.e. negative inverted SLR test.
Reflexes were present and brisk and symmetrical with no fatigue.
Left knee
It was evident on examination of gait that as a result of the knee surgeries, that there was alteration of gait with his left leg slightly laterally rotated.
Left knee
Clinical examination of the left knee indicated a full range of movement, i.e. from 0-130° flexion, but clearly there was some degree of instability of the left knee with a Grade 2 medial instability but no associated tenderness, with the medial instability almost certainly being a factor with regards to his altered gait and slightly laterally rotated lower extremity.
The left leg altered gait is secondary to the left knee surgeries x 3.
Knee, ankle and hamstring jerks were preserved bilaterally.
Reflexes intact. Lower limb neural tension signs were negative bilaterally. No decrease in power pertaining to L4/5 and S1 nerve roots.
Walking on toes and heels was considered not reflective of the lumbar spine in view of the extensive altered biomechanics pertaining to the left knee.
Whilst there was a complaint of sensory change involving the lateral calf and shin, there was no such alteration over the dorsum of the foot (L5/S1 distribution).
INITIAL THOUGHTS AND CONCLUSIONS
This was a review of the initial assessment and was for the purpose of reviewing a whole person impairment assessment and a treatment dispute.
Clinical presentation is indicative of a DRE II type assessment in relation to the cervical spine, in view of the subsequent pain pattern and asymmetric movement, but no evidence of radiculopathy.
In relation to the lumbar spine, again this would present as a DRE II type assessment with asymmetric movement and a non-verifiable radiculopathy involving the left lower extremity.
Altered gait on clinical presentation was significantly coloured by his extensive surgery and altered biomechanics pertaining to the left knee, presenting also now with fairly marked medial instability, resulting in therefore inability to access walking on toes and heels.
Whilst he states therefore that he has recovered well from left knee surgery, that doesn’t mean he is in actual fact 100% nor has made a complete recovery, as we believe long-term he has been left with residual altered biomechanics in relation to the left knee and subsequently left lower extremity. (Somewhat downplaying the role the left knee has played in his overall presentation, although he did mention initially that the left knee had been “a bit loose” before the 2021 motor accident).
The left leg altered gait is secondary to the left knee multiple surgeries and residual medial instability.
Nevertheless, in view of the pain pattern with no clear evidence of radiculopathy, it would be accepted that he has a DRE II pertaining to the lumbar spine and cervical spine respectively.
Comment
Mr Nadasy is a 49-year-old male with a long history of left knee symptomatology, who was involved in a rear-end motor vehicle accident some four years ago on 22 January 2021.
As a result, it is accepted that he sustained soft tissue injuries, particularly to the cervical and thoracolumbar spine. Since then he has undergone no operative procedures, but his complaint continues to be one of back with associated left leg symptoms, i.e. non-verifiable radicular symptoms, and similar pertaining to the cervical spine for which he has undergone a nerve root sleeve injection, symptoms involving the left upper extremity, but again no definable radiculopathy.
It is very likely that the symptoms therefore involving the left lateral shin are in actual fact related to the left knee surgery, with presentation involving the superficial peroneal nerve, which is a well-known complication of knee surgery, i.e. he has had three such procedures.
It is therefore accepted that the following were caused by the motor vehicle accident:
·Cervical spine – aggravation of underlying degenerative change particularly at C5/6 level
·Lumbar spine – aggravation of underlying degenerative change at L4/5 and L5/S1 with a likely traumatic annular tear and disc bulge at L4/5
The following injuries have either resolved or were not caused by the motor vehicle accident:
·Left arm – left upper limb involving numbness in both the left arm and hand
·Thoracic spine
·Left buttock
·Left leg – symptoms distal to the left knee
The Medical Assessors adopt the earlier examination report of Medical Assessor Sophia Lahz which is as follows:
MEDICAL ASSESSMENT OF MR GABOR NADASY22/11/24 0900-1045 AT PIC SUITES
Mr Nadasy attended punctually for the assessment having driven from home to the CBD appointment. He is aged 49 and right-handed. By way of background, he was born in Hungary and has lived in Australia for nearly 25 years. He lives at Dee Why with his partner whilst sharing the car of his daughter aged 6 and stepdaughter aged 15 with his ex-partner.
He was cooperative during the examination though somewhat tangential. I had frequently to bring him back to the task at hand. I also sometimes had to reframe questions sometimes due to combination of distractibility and NESB. It was a lengthy process to obtain a well-sequenced history (focusing on trajectory of symptomatic complaints) from him due to distractibility, tendency for anecdotes and making jokes.
At the time of the motor accident 27/1/21 he had been working full-time as a safety officer, training subcontractors in safety procedures which involved frequent negotiation of uneven ground. He explained that he has been in this industry for over 20 years and well-regarded.
He reported excellent general health before the motor accident. Specifically there was no history of either neck or else lower back pain. At age 20, he did undergo a left knee reconstruction (ACL) after a skiing injury although he said that at the time of the motor accident, the knee was minimally symptomatic and did not prevent him from desired/normal activities.
Before the 2021 motor accident, he said he was extremely active with gym workouts, running, surfing and skipping. He is a non-drinker and non-smoker who does not use any recreational drugs. He has also been an active parent with playing with his small daughter.
Since the motor accident, he cites significant incapacity due to neck and left upper limb symptoms as well as low back pain with left lower limb symptoms. His partner helps with physically demanding activities he can no longer do and he mentioned that has due to physical inactivity, he has gained 15 kg since the motor accident.
He confirmed his involvement in the subject motor accident during January 2021. At the time, he was driving a Volkswagen Superb wagon and stationary in a traffic jam on the M1 near Woy Woy. He and his family had been heading to Byron Bay on a holiday when suddenly (without warning) a large truck with bull bars rear-ended his vehicle on the left side, causing his VW wagon to move toward the right. There was no secondary impact.
He was unsure if there were impact to body parts with part of the cabin, aside from possibly the left hip/buttock on the door. He reported there had been some bruising in that location. Immediately afterwards, he felt shocked although after a few minutes he could exit the vehicle and walk around at the scene whilst speaking with others. Bystanders checked if he were ok. The ambulance did not attend, nor the police although he explained that a report was made to the police.
Immediately after the accident, he said there was a lot of “adrenaline” and he felt no pain.
Although there was significant front-ended damage to his vehicle, the car was drivable and he proceeded onwards to Byron Bay. However, on waking the next day, there was severe neck, middle back and lower back stiffness/pain with subjective sensations of “ice” and “swelling”.
He saw his GP (Dr Richard Sacks) at Warringah several days later at which stage he said he was struggling to walk and generally move around due to generalised spinal pain/stiffness.
The doctor arranged physiotherapy mostly comprising passive modalities, hands-on therapy, massage and gentle exercise. Eventually the Insurer said they would no longer fund any treatment and he subsequently self-funded therapy until earlier this year, when he could no longer afford it. He said that the physiotherapy was fitful whilst the insurer had been funding it, in that it could take weeks for them to approve a further ten sessions. He said he was starting a strengthening programme at the gym around the time the Insurer cut the funding and consequently (due to his self-funding) he never embarked fully on the recommended strengthening programme. He last attended physiotherapy earlier this year. He continues attending the gym (self-funding) although his visits for use of the treadmill, bicycle, light weights, “hamstring machine” etc only last 15 minutes compared with more than two hours before the motor accident.
Subsequent to the motor accident, he explained that as the neck/lower back spinal pain/stiffness abated, he noticed numbness involving the left arm and left leg. I asked him how long this occurred after the accident although he was unsure, it was possibly a few months. He said that the left arm and leg neurological symptoms developed at approximately the same time and have persisted.
In the left arm, he recalled that the neurological symptoms (tingling/numbness) were initially most prominent in the middle and ring fingers. He recalled that the thumb sensation has always been pretty good since the accident. In the left leg, there were tingling sensations/numbness in the lateral four toes with sensory preservation at the big toe.
He thought initially that he had sustained injuries to all three spinal regions due to the presence of interscapular pain in addition to neck and lower back pain. However, when he later consulted Dr Saravanja the neurosurgeon, it was explained that the interscapular (middle back) symptoms were likely referred from the neck.
There has never been any bowel or else bladder dysfunction.
He has undergone several MRI scans of the neck and lower back (2021, 2022 and 2024), which he feels it important that the Panel reviews. He said the scans showed “disc bulges” at the neck and lower back, and that the more recent 2024 scan shows a “hernia” at the neck, which he believes Dr Home in making his conclusions, did not fully appreciate.
He was off work for a period (unable to recall duration given this was nearly four years ago). He struggled at work due to spinal and upper/lower limb symptoms which curtailed his walking distance. He was coming home with severe spinal pain and felt unable to manage. He left that employer and then worked for several smaller businesses in the hope of securing more flexible arrangements. However, for the most part, the employers could not offer him sufficient flexibility in consideration of his parenting commitments as well as his spinal problems from the motor accident. Finally about 18 months ago, he found full time work with a very small employer which suits him, and there are “flexible arrangements”. He said however that he has used up all his annual leave and sick leave due to spinal pain. On average, he has about one day off per week and he is now experiencing considerable financial hardship.
His GP eventually referred him to Dr Saravanja a neurosurgeon whom he saw initially in February 2022. On 17/3/22, he received a steroid injection to the neck (reportedly at left C56) which he said proved effective in resolving “at rest” left upper limb pain. Ongoing, he still has left upper limb pain/neurological symptoms although these are induced by neck movements/physically demanding activities as opposed being constantly present.
Dr Saravanja’s records (2022) indicate some concern about left C6 nerve injury although surgery was not immediately necessary. According to the claimant, surgery is nonetheless “on the radar” down the track if necessary.
Dr Saravanja’s records also indicate symptomatic complaints of left hand clumsiness associated with dropping items from the hand.
The records refer to left upper limb pain with neurological symptoms (numbness in C6) and also left lower limb pain with neurological symptoms (tingling/numbness in L5). (NB the first consult in February 2022 notes right lower limb symptoms although the claimant believes that this is a “typo”.)
Further, there are references to the left foot “turning in” when tired.
There has never been any bowel or bladder dysfunction.
He last saw Dr Saravanja earlier this year, who has recommended (according to the claimant) that he have a further cervical spine injection as well as a de novo lumbar spine injection.
Approximately one year after the motor accident, Mr Nadasy was working on a construction site (uneven ground) and tripped with resultant twisting (re)injury of the left knee. He believes that the left ankle “turning in” and left leg giving way were the cause of this mishap. I pressed him on whether the ankle weakness had been present before the knee surgery and he said it had been. It occurred to me that he could have some peroneal nerve weakness from surgery.
The knee became painful as well as grossly unstable after years of minimal discomfort/good stability. There were several falls on this basis. During 2023, he underwent two left knee surgeries, the first to “clean up” the knee and the second for insertion of graft to the ACL. He has proceeded to make an excellent recovery. The knee is once more stable and in fact, he has less pain there than before the motor accident.
Aside from seeing Dr Saravanja (awaiting neck and lower back injections) when he has sufficient time and money, and taking simple analgesia (Panadol and/or Brufen) mostly at night, he is not receiving any treatment for the accident related injuries.
Current Symptoms
He complains of marked neck stiffness, and on looking left, he develops pain and tingling down the left lateral arm/forearm and affecting the middle, ring and little fingers. He still feels that the thumb has nearly normal sensation. With neck movements, the pain can sometimes shoot down the left arm. There is frequent posterior neck pain 6-7/10 and when the arm pain occurs, this is around 5/10 intensity. Sometimes, the left arm feels as though he has been struck by a hammer.
He complains ongoing of some clumsiness and weakness in the left hand. He prefers using the right hand for most activities given the unreliability of the left.
Neck and left upper limb pain interferes with his activity levels. At work, he has to stop or else take the day off. Sometimes he sees the doctor for painkillers or else attends the pharmacy.
He has some concerns about driving due to neck stiffness.
At the lower back, there is pain across the lumbosacral region with symptom (pain and numbness/shooting pains) spread to the left buttock, posterior thigh, lateral calf and foot dorsum/lateral four toes. There is sparing of the big toe and symptoms are in fact worst in the IV and V toes. The left leg is unreliable and can give out although this is not due to knee troubles. As noted, the left knee is less symptomatic now than pre injury. The left foot continues turning in making him prone to trips and falls.
He asked to make a drawing for me of how he feels about his body. He drew a human figure depicting the left arm and left leg as ¼ the size of the corresponding right-sided limbs.
His partner does most of the chores including the floors, laundry and rubbish removal although he still does some cooking, shopping (I can carry groceries) and self-paced yard work (enjoys growing vegetables, lawn mowing) and vacuuming. He said he finds it easier to do things on the weekend because he has the autonomy to stop and rest if necessary.
He avoids prolonged sitting, walking, standing, repetitive bending, repetitive neck movements, and carriage of heavy items. He also avoid negotiation of stairs and reported that he cannot run because this stirs up and leg and arm pain.
He is very concerned by loss of earning capacity and the effects of the injuries on his career trajectory/pay scale.
Examination
Mr Nadasy is a tall, strongly built man with broad shoulders and moderate central adiposity.
Weight was 108 kg and height 186 cm.
At the commencement of the examination, I asked him to make best efforts with all requested movements, or else it would be difficult to make a valid assessment. There were frequent pain complaints throughout the examination mostly on being asked to move either the lower back or else the neck.
There was normal cervical lordotic posture associated with tenderness at C5-7. There was no guarding or spasm. There were possibly some left non-verifiable radicular complaints (C5-6) covers the lateral arm and forearm, although of interest, the thumb (C6) was spared whereas there was greater involvement of fingers (middle, ring and little) i.e. C7 and C8.
He demonstrated neck flexion ½ normal range, extension 2/3 normal range, rightward rotation ½ normal range, leftward rotation 1/3 normal range, and lateral flexion 1/3 normal range to either side. He indicated that leftward neck movements induced neck pain as well as pain and neurological symptoms in the left upper limb whereas right-sided movements only induced neck pain. There was dysmetria present with greater right-sided movements than left, and better extension than flexion.
There was positive left-sided spurling test.
Upper limb reflexes however were present and symmetrical once adequate relaxation of the left upper limb was achieved.
The left arm measured 1 cm less than the dominant right arm consistent with handedness (34 cm) on the right versus 33 cm on the left 10 cm above the elbow crease. The left forearm measured 1 cm less (29.5 cm) than the right forearm 30.5 cm 5 cm below the elbow crease.
He made a good effort during power testing. At most, there was mild weakness of the left-sided intrinsics and possibly the triceps with otherwise good preservation of power at the left upper limb. There was normal right upper limb power. Finger dexterity was also satisfactory bilaterally.
On sensory testing, there was generalised sensory change affecting the left upper limb for both light touch and pinprick, although it was most marked at the lateral forearm and lateral arm (as well as the middle, ring and little fingers), again as noted sparing the thumb.
There were not the two signs present required by MAG to conclude that cervical radiculopathy was present.
Carpal tunnel and ulnar nerve provocation tests were negative bilaterally and there was no wasting of the small muscles of the hand.
There was a full range of bilateral shoulder movement in all planes with complaints of (neck/trapezial) pain at end of range (abduction and flexion).
There was no tenderness of the thoracic spine and the clinical examination was unremarkable without dysmetria, spasm/guarding or radicular signs.
There was slight flattening of the lumbar lordosis with tenderness at L5-1 although there was no muscle spasm or else guarding.
Lumbar flexion was ½ normal range and extension 2/3 normal. Both were associated with pain complaint. Lateral flexion was equivalent (3/4) normal range to either side although he indicated that left lateral flexion caused more lower back and leg discomfort than rightward movements.
He possibly has left-sided lower non-verifiable radicular complaints in L5 given the prominence of symptoms at the lateral calf and foot dorsum (albeit with sparing of the big toe).
On sensory testing (light touch then pinprick), there was again a global sensory change reported in the left leg albeit more prominent in the left lateral calf and foot dorsum excluding the big toe.
There was preservation of bilateral lower limb strength in supine aside from mild left EHL weakness (of note hindfoot eversion and inversion were preserved) although on gait there was tendency to “throw” the left leg and he could also not sustain heel walking, the foot consistently sagging toward the ground with repetition of heel walking/fatigue. He could walk on tiptoe, lateral borders of the feet and medial borders of the feet reasonably well.
Knee, ankle and hamstring jerks were preserved bilaterally.
The left thigh measured 2 cm (47 cm) less than the right thigh (49 cm) 2 cm above the superior patellar border. The calves measured symmetrically at maximal mid girth 40 cm.
Lower limb neural tension signs were negative bilaterally in that he could sit on the side of the bed with legs fully extended i.e. negative inverted SLR test.
The clinical findings are consistent with left L5 radiculopathy given the left heel sag induced by fatigability on repetition and the prominent sensory change in the lateral calf.
At the left knee, there was no crepitus on either side. As noted, there is some mild left thigh atrophy. The knees moved bilaterally 0-130 degrees. The knees were stable in the AP plane. At the left knee, there was grade 2 medial instability. There was no tenderness at either knee. He reiterated that the left knee condition is significantly less symptomatic since the most recent surgery.
Conclusions
The Panel following the first TC requested the GP records to understand the trajectory of the claimant’s symptoms although these have not been received.
Broadly speaking his symptoms of left C6 distribution (pain and sensory loss) correspond with MRI findings indicative of C56 disc pathology since the motor accident, which has progressed from 2021-2024. He does not meet the clinical criteria for radiculopathy per MAG although there is dysmetria present, and the findings are consistent with DREII or else 5% WPI.
Similarly, the distribution of left lower limb pain/sensory symptoms corresponding with again progressive pathology noted at L5S1 level. On clinical examination, he does meet the criteria for left L5 radiculopathy given the presence of sensory loss at the lateral calf/top of the foot and ankle dorsiflexion weakness.
As noted, he was unintentionally a somewhat difficult historian when it came to understanding the symptom trajectory.
It appears that he may not have developed the left-sided upper and lower limb symptoms until several months had elapsed after the motor accident.
It is important to understand the trajectory of complaint and the Panel should request these GP records again (Dr Richard Sacks, Warringah).
Regarding the left knee, he alleges the left foot weakness caused him to fall with resultant knee reinjury culminating in ACL redo repair. The Panel has not seen any clinical documentation associated with this injury so has no corroboration of the claimant’s account. As noted, the left knee has recovered very well from the recent surgery (2023) being (now) pain free and stable in the anterior plane. He is not bothered by residual medial instability which would have been associated as well with the original sporting injury. He mentioned that the left knee had been a bit “loose” before the 2021 motor accident.
REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
The claimant is required to establish that the treatment and care is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the treatment and care is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment and care is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act1987 in Clampett v WorkCover Authority of NSW,[6] Grove J stated:[7]
“22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ as relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ – (shorter Oxford English Dictionary, 3rd Edition) 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 may be ‘reasonably necessary’, there is these statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[6] [2003] NSWCA 52.
[7] Clampett at (22) – (23), Meagher and Santow JJA agreeing.
Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[8]
[8] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).
Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[9] They include:
(a) the appropriateness of particular treatments;
(b) the availability of alternative treatments;
(c) the costs 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.
[9] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88).
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the 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 Medical Assessors note with approval Medical Assessor Home’s finding that there is no evidence, based in the relevant Guidelines, to recommend indefinite passive treatment. The Medical Assessors adopt Medical Assessor Home’s reasons for so finding. They only wish to add that the natural history of such soft tissue injuries would be for recovery to occur within a 6-to-12-week window as the rationale for the recommended duration of the assistance.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[10] The Review Panel adopts the examination findings and reasons of the Medical Assessors. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[11]
[10] Section 7.26(6) of the Act
[11] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287
The Medical Assessors have explained why they have come to the same conclusions and findings as Medical Assessor Home in relation to the assessment of whole person impairment.
In relation to the reasonable and necessary treatment dispute, the Review Panel determines that physiotherapy for neck pain and low back pain was related to the accident and reasonably necessary for three months post-accident. Thereafter, the claimant should have been equipped for self-management of his spinal symptoms, without further physiotherapy intervention.
CONCLUSION
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor Home on 6 May 2024, in relation to whole person impairment, should be confirmed.
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor Home on 6 May 2024, in relation to reasonable and necessary care, should be revoked. The new Certificate appears at the commencement of these reasons.
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