Notaras v Insurance Australia Limited t/as NRMA Insurance (No 1 and 2)

DETERMINATION OF REVIEW PANEL
CITATION:	Notaras v Insurance Australia Limited t/as NRMA Insurance (No 1 and 2) [2023] NSWPICMP 433
CLAIMANT:	Alicia Notaras
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	1 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 17 July 2018; the dispute related to the payment of fusion surgery surgical to the cervical spine and the assessment of permanent impairment; claimant not re-examined; motor accident aggravation of degenerative changes to neck with ongoing symptoms; reason for surgery included treatment of discogenic neck pain; common law test of causation; AAI Ltd v Phillips applied; claimant did not establish that surgery was “necessary”; clear lack of radiculopathy; chronic pain syndrome counter intuitive to undergoing extensive surgery; satisfied that surgery was “reasonable”; surgery designed to treat neck pain; insurer’s submission that claimant must establish that treatment “reasonable and necessary” to satisfy causation of impairment rejected; contrary to causation test in section 4.11 clause 6.5 to 6.7 of the Guidelines; insurer’s submission on “purpose” rejected; Dhupar v AAI Ltd referred to; Held – claimant assessed at greater than 10% permanent impairment; claimant did not establish that surgery was “necessary”.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% *THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS: The Panel revokes the certificate dated 20 December 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%: · cervical spine; · thoracic spine; · lumbar spine; · right and left shoulder; · scarring, and · head injury. Medical Assessment – Treatment and Care Review Panel Assessment of Treatment and Care Certificate** issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 20 December 2022.

REASONS
BACKGROUND

Ms Alicia Notaras (the claimant) suffered injury on 17 July 2018 when the insured vehicle rear ended the claimant’s vehicle pushing her vehicle into the vehicle in front.[1]
[1] Claimant’s bundle, p 1 and p 9.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Notaras any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present disputes are whether the claimant’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%” and “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”. The treatment dispute concerned a cervical discectomy and fusion at C4/5 and C5/6 (the surgery). These constitute medical disputes within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessments the subject of this review was conducted by Medical Assessor Cameron and dated 20 December 2022. The Medical Assessor assessed the degree of permanent impairment at 4% due to the left and right shoulders and that injury to the head and face were not caused by the motor accident. He otherwise found that the surgery was not reasonable and necessary.
The details of that assessment are set out later in these Reasons.

THE REVIEW

The application for referral of the medical assessments to a Review Panel (the Panel) were made by the claimant within 28 days after the parties were issued with the original certificates for the medical assessments for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the Panel’s Direction.
On 10 August 2023 the Panel issued a further direction in the following terms:
“The Panel has convened and requests the parties to advise whether they accept the permanent impairment assessments other than the impairment assessment of the cervical spine.
We consider that if the above is accepted then the assessment of the cervical spine impairment and the treatment dispute could be undertaken on the papers.
We note that the issue of ‘reasonable and necessary in the circumstances’ is distinct from the issue of causation of impairment and/or treatment: see clauses 6.5 – 6.7 of the Motor Accident Guidelines; AAI Ltd v Phillips [2018] NSWSC 1710 at [29].
The parties may provide submissions on whether the Panel could find that the surgical treatment was not ‘reasonable and necessary in the circumstances’ but that the impairment from the surgery was as a result of the injury caused by the motor accident.”
The insurer provided a response dated 17 August 2023. We have subsequently quoted in full this response as we disagree with substantial portions of that submission.
The claimant did not reply despite being subsequently requested by Commission staff for a response.

ASSESSMENT UNDER REVIEW

The Medical Assessor provided a medical assessment dated 20 December 2022 determining that the permanent impairment of the injuries was not greater than 10%. The relevant portion of the Medical Assessor’s reason for the assessment of the cervical spine due to surgery included:
“Ms Notaras developed persistent neck pain and other symptoms following the motor vehicle crash. Based on the available clinical information and the information provided by Ms Notaras the cervical spine symptoms were neck pain without radiculopathy. There was also no myelopathy (damage to the spinal cord). Therefore, there is no generally accepted indication for cervical discectomy or fusion. Accepted indications for surgery are radiculopathy persisting for more than three to six months despite other treatments, or myelopathy, or an unstable spine due to trauma. Because there was no accepted indication for surgery the treatment is not reasonable and necessary.”
“Within this spinal region there has been a spinal fusion. As noted in section 6.145 Motor Accidents Guidelines, this is assessed as multilevel structural compromise. Section 1.143 notes that this is assessed at DRE IV (or DRE V if radiculopathy is present). Radiculopathy is not currently present. Causation has not been established for the surgery for the spinal fusion. Therefore, the current 25% WPI is apportioned fully. Prior to the cervical spinal fusion there is no evidence that radiculopathy as defined in the Motor Accidents Guidelines was present.”

MATERIAL BEFORE THE REVIEW PANEL

The Panel requested and were provided with separate bundle of documents provided by the parties.

PRE ACCIDENT RECORDS

The pre-accident clinical records of the general practitioner (GP) do not refer to similar symptoms allegedly caused by the motor accident[9] save as to references to depressed mood, symptoms of dizziness and related conditions in March 2015 and June 2016.[10]
[9] Claimant’s bundle, pp 177-185.
[10] Insurer’s bundle, p 48.
There was no record of prior neck pain.

POST MOTOR ACCIDENT

Ambulance record

The ambulance report noted a motor accident at approximately 45 kmph which shunted the claimant’s vehicle into the vehicle in front. The officer noted:[11]
“Initially C/O pain to occipit skull, denies hitting ahead on dash, wearing seatbelt. O/E – Pt alert, warm, pink, GCS 15, afebrile. Denies LOC. Denies chest pain, SOB. Denies pain to major bodily regions. After two minutes pain in the occiput skull self-resolved. En route Pt C/O pain to RHS sacral region, described as burning like sensation. Tx to RPAH for further Mx. Pt rang family in route. Pt slow and vague with responses, not engaging through the mid infraspinatus tendon. With AO’s en route.”
[11] Claimant’s bundle, p 29.

Hospital records

The hospital discharge summary referred to no head injury, no loss of consciousness, nil neck pain, nil blurred vision, nil nauseating nausea or vomiting. The notes refer to pain in the right side of the body chest, hip and a mild headache. Past medical history included chronic back pain “known to osteopath”.[12]
[12] Insurer’s bundle, p 8.

General practitioner and treating records

The claimant attended her GP on 18 July 2018 when the motor accident was noted. The GP noted “nil LOC”, neurologically intact with headache and neck pain. The spinal and chest x-rays were normal, and the GP requested scans of the right wrist.
On 29 August 2018 the GP noted left shoulder pain and organised an ultrasound.[13] Subsequent GP consultations noted neck and shoulder pain.
[13] Claimant’s bundle, p 187.
An ultrasound of the left shoulder dated 3 September 2018 showed a small intrasubstance tear through the mid infraspinatus tendon.[14]
[14] Claimant’s bundle, p 34.
A certificate of capacity dated 29 August 2018 completed by the GP referred to neck and shoulder pain.[15] The GP issued subsequent certificates of capacity which confirmed an ongoing neck problem.[16]
[15] Claimant’s bundle, p 287.
[16] Claimant’s bundle, pp 290-310; Insurer’s bundle, pp 209-289.
A certificate of capacity dated 14 September 2018 referred to a shoulder and neck injury as a direct result of the motor vehicle accident and noted no pre-existing factors.[17]
[17] Claimant’s bundle, p 280.
An MRI scan of the brain dated 14 January 2019 was reported as normal.[18] The MRI scan of the cervical spine of the same day showed a central and right-sided disc/ridge complex with no central stenosis or cord compression at C4/5. At C5/6 there was a disc bulge and tiny central annual fissure with no central stenosis, cord compression and no foraminal nerve root compression. At C6/7 there was a tiny central disc protrusion with no compression.
[18] Claimant’s bundle, p 35.
A video head impulse test dated 24 January 2019 was normal save as to showing a mild vestibular evoked myogenic potential (VEMP) involving both ocular and cervical regions. Repeat testing was suggested to confirm the mild VEMP asymmetry.[19]
[19] Claimant’s bundle, p 38.
An MRI scan of the left shoulder dated 17 April 2019 showed moderate osteo arthropathy of the acromioclavicular joint (ACJ). The scan showed moderate bursitis, supraspinatus tendon of the associated small partial thickness tears with other degenerative features.[20]
[20] Claimant’s bundle, p 42.
In a report dated 12 August 2019, Dr Lawrence noted that the claimant had improved since the previous visit and opined that the claimant had “myofascial neck and shoulder pain”.[21]
[21] Insurer’s bundle p 364.
On 23 September 2019 the claimant presented to Royal Prince Alfred Hospital complaining of chest pain.[22]
[22] Claimant’s bundle, p 46.
In a referral to Dr Rosen dated 12 December 2019 the GP noted that claimant suffered a Grade II whiplash in the motor accident and “has not recovered well”.[23]
[23] Insurer’s bundle, p 255.
An undated report from the osteopath noted that the claimant had attended the clinic since 30 April 2020 with acute migraine, neck and back pain among other symptoms.[24]
[24] Claimant’s bundle, p 176.

Specialist treating records

In a report dated 12 June 2019 Dr David Rosen, neurologist, noted that a year after the motor accident the claimant presented with ongoing neck pain, non-rotational vertigo, non-specific dysequilibrium, dizziness, headaches, dyscognitive and other symptoms consistent with episodic migraine. The doctor noted that the MRI scan of the neck uncovered “minor degenerative changes at several levels but no diagnostic pathology”.[25]
[25] Claimant’s bundle, p 44.
Dr Rosen opined that the claimant suffered a soft tissue injury of the neck complicated by persisting mild vestibular dysfunction and new onset migraine. Her condition was improving, and the doctor recommended various medications.
In a report dated 18 December 2019, Dr Rosen noted increase in alcoholic intake up to 24 units a week in the context of chronic daily headache and episodic migraine. The doctor noted ongoing symptoms of whiplash/soft tissue neck injury with chronic daily headache and episodic migraine and other symptoms following the rearing motor vehicle accident. Dr Rosen noted that the increased levels of self-medication with alcohol, deteriorating mood and chronic headache and other symptoms may exacerbate cognitive difficulties.[26]
[26] Claimant’s bundle, p 57.
In another report dated 19 December 2019, Dr Rosen diagnosed soft tissue injury of the back and cervical spine, post-traumatic migraine and non-specific vestibular dysfunction possibly vestibular migraine.[27]
[27] Claimant’s bundle, p 62.
Dr Rosen noted:
“Although MRI brain was reported normal and the index injury may not have resulted in a head strike or definite loss of consciousness, brain injury can occur in the context of deceleration and mild traumatic brain injury is associated with whiplash. The persisting symptoms of cognitive impairment and mood dysfunction and the results of neuropsychological testing and ophthalmological assessment are consistent with this diagnosis. However, increasing levels of self-medication with alcohol, deteriorating mood, chronic headache, tinnitus and vestibular symptoms are (in addition to being established complications of traumatic brain injury and manifestations of post concussion syndrome) confounding factors that may exacerbate cognitive difficulties.”
The doctor opined that on balance, the claimant sustained a mild traumatic brain injury.
In a neuropsychological assessment dated 26 November 2019, Dr Miskovic-Wheatley noted that the physical, behavioural and cognitive symptoms that had evolved after the motor accident together with suspected loss of consciousness at the time of the motor accident caused a showed a small circumvention disc and convertible joint osteo complex at C4/5 causing mild to moderate narrowing of the cord and a mild traumatic brain injury.[28]
[28] Claimant’s bundle, p 50.
The claimant was initially reviewed by Dr Raoul Pope, neurosurgeon and spinal surgeon, on 7 October 2020 with a reported history of neck pain and bilateral upper limb pain and numbness since the motor accident.[29] Neurological examination was normal, and the doctor requested an MRI and CT SPECT bone scan. The doctor then opined that there was a whiplash type grade II disorder.
[29] Claimant’s bundle, p 214.
The MRI scan of the cervical spine dated 24 October 2020 showed a small circumferential disc and uncovertebral joint osteophyte on the right at C4/5 which was causing mild to moderate narrowing of the neural exit foramina. At C5/6 there was reduced disc height, disc desiccation, circumferential disc and uncovertebral with mild facet joint arthrosis. This resulted in some moderate narrowing of the neural exit foramina bilaterally.[30]
[30] Claimant’s bundle, p 260.
The bone scan dated 23 October 2020 showed mild spondylotic and degenerative endplate changes at C5/6 with no scan evidence of active facet joint arthritis or other spinal pathology. There were mild arthritic changes in the left AC joint.[31]
[31] Claimant’s bundle, p 261.
On 4 November 2020 Dr Pope opined that went there was discogenic neck pain at C5/6 and C4/5 with bilateral upper limb numbness with a C6 radicular component. The doctor stated that this was confirmed by the MRI scan as well as the CT SPECT bone scan. Dr Pope recommended referral to Dr Nazha, pain specialist.
On 2 February 2021 Dr Pope noted normal tone, power and reflexes with decreased range of motion movement of the neck in all directions due to pain. The doctor suggested that a two-level fusion for discogenic neck pain with some C6 radicular component can be examined if symptoms deteriorated further.[32]
[32] Claimant’s bundle, p 209.
On 31 March 2021 Dr Pope noted that the claimant had undergone a multidisciplinary team approach to avoid surgery which was unsuccessful. He noted that the claimant did not see Dr Nazha as she did “not want to mask symptoms”.[33] Examination showed decreased neck movement by 75% in all directions, no myotome weakness with altered sensation over the C6 dermatome and marginally on the left C5.
[33] Claimant’s bundle, p 203.
The claimant was admitted to the Mater Hospital on 15 April 2021 and underwent a C4/5 and C5/6 anterior cervical discectomy and fusion for neck and upper limb pain. The operative findings were disc herniations at C4/5 and C5/6 greater on left than right.[34]
[34] Claimant’s bundle, p 225.
On 27 April 2021 Dr Pope noted that it was two weeks since the surgery for “discogenic neck pain and left C5 and C6 radicular arm pain”.[35] The doctor noted the surgery was uneventful and provided “immense improvements” in arm symptoms. On examination there was no weakness of the myotomes with some numbness over the left C5 and C6 dermatomes.
[35] Claimant’s bundle, p 199.
In May 2021 Dr Pope noted the claimant’s excellent progress with left upper limb symptoms resolving and neck pain improving.[36]
[36] Claimant’s bundle, p 197.
In July 2021 Dr Pope noted ongoing improvement with residual neck spasm and cervicogenic headaches. The doctor described the claimant as “happy she decided to have the surgery” and that the claimant had a “strong case” and a “very clear-cut case where her motor vehicle accident was the substantial if not complete cause of her problems”.[37]
[37] Claimant’s bundle, p 195.
In September 2021 Dr Rosen noted that the claimant had recovered well following the surgery in April of that year. Net mobility was less restricted in flexion and extension and the claimant had regained certain functions such as washing hair without provoking upper limb numbness.[38]
[38] Claimant’s bundle, p 101.

Qualified opinions

Dr Clive Chappel, surgeon, was qualified by the insurer and provided a report dated 21 December 2020.[39] The doctor noted from an ENT perspective the nose and throat were essentially normal which had been confirmed by audiometry. Dr Chappel opined that the bruxism is a major source of muscle tension and the likely major source of the tinnitus. He opined that the cervical injury and associated muscle spasms are likely also to trigger the tendency to clench and grind. The doctor opined:
“Overall, Ms Notaras came across as an honest and intelligent reporting symptoms and background effectively. The exquisite tenderness of her temporomandibular joints and associated muscles is a major indicator of bruxism aggravating the increased muscle tone of her face, scalp and cervical muscles and is likely to be a significant aggravating factor or even trigger for the migraine type headache she is now experiencing.”
[39] Claimant’s bundle, p 68.

Dr Anthony Smith, orthopaedic surgeon, was qualified by the claimant and provided a report dated 1 March 2021.[40] On examination the doctor noted neck movements about two-thirds of the expected range, limited by pain. The doctor noted no sensory abnormality in the upper limbs and global power loss in all movements of both upper limbs.
[40] Claimant’s bundle, p 234.
In a further report dated 16 April 2021, Dr Smith opined that the proposed surgery was not treating any symptoms that had resulted from the motor vehicle accident. This was because any exacerbation of aggravation of the previous asymptomatic cervical degenerative disease would have resolved within three months at most.[41]
[41] Insurer’s bundle, p 19.
Dr Smith opined that the claimant sustained an aggravation to a pre-existing previously asymptomatic cervical degenerative disease. He noted that the cervical degenerative disease and rotator cuff disease will get slightly worse with the passage of time. Dr Smith also opined that the claimant was embellishing her condition to some extent.
Dr Smith opined that the exacerbation to the cervical degenerative disease ceased after the “first pain-free period” which would have occurred “after three months after the motor vehicle accident”.
Dr Rickard-Bell was qualified by the insurer and provided a report dated 23 March 2021.[42] The doctor opined that the claimant suffered from a chronic adjustment disorder secondary to chronic pain syndrome and assessed permanent impairment for the psychological condition at 6%.
[42] Claimant’s bundle, p 75.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 16 November 2021.[43] Relevantly the doctor noted the claimant suffered disc injuries in the cervical spine at C4/5 and C5/6 and underwent cervical decompression and fusion was some improvement following the surgery. The doctor also opined that the claimant suffered a closed head injury with minor acute brain injury.
[43] Claimant’s bundle, p 107.
Dr Bodel opined that the cervical fusion surgery was “appropriate” and noted significant psychological disturbances which are part of the original injury. The doctor made various assessments of permanent impairment including an assessment of DRE cervical category IV due to the neck fusion. The doctor also assessed DRE lumbosacral category II and a slight restriction of right shoulder movement.
Dr Ben Teoh, psychiatrist, was qualified by the claimant and provided a report dated 5 December 2021.[44] Dr Teoh opined that the motor accident caused a Major Depressive Disorder and assessed impairment at 19%.
[44] Claimant’s bundle, p 139.
Dr Teychenne, neurologist, opined that the motor accident caused mild traumatic brain injury, disc bulges at C4/5 and C5/6 requiring surgery, psychiatric symptoms and pain in the back shoulders and right arm.[45]

Statement – claimant[46]

[45] Claimant’s bundle, p 160.

[46] Claimant’s bundle, p 1.

Ms Notaras provided a statement dated 11 October 2021. She stated that prior to the motor accident she was in full-time employment and had always been “very fit and athletic”.
The claimant stated that the motor accident caused a number of injuries including “C4-5 and C5-6 disc bulges requiring anterior cervical discectomy and fusion” and “mild traumatic brain injury”.
The claimant returned to work “soon after the accident” reliant on large amounts of pain killers. She described her difficulties following the motor accident which the claimant described as relating to both psychological issues and what she perceived as a brain injury.
The claimant completed a claim form dated 29 August 2018.[47] The description of injuries in the claim form were:
“My head, neck, shoulders and whole right side of my body has pain. I went into shock due to pain, witnesses called an ambulance which took me to RPA Hospital for assessment. I was released later that day with muscular injuries, whiplash and trauma. My right arm was burning??? the next day. I went to my GP and had scans which ruled out any breaks. I received treatment from my osteopath for all injuries. My right arm has healed after treatment but still weak. I still can’t turn my neck left fully and my left shoulder is frozen and painful, nothing relieves the pain. I have a constant headache all day and nausea. I have returned to work and take frequent breaks as my back is painful and I have constant headaches. I’m tired and can’t do the weekly activities I would normally do.”
[47] Claimant’s bundle, p 7.

SUBMISSIONS

Claimant’s submissions

These submissions sought a review of the assessment provided by Medical Assessor Cameron.
The claimant referred to the ongoing causal relationship “between the immediate pain in her neck and ongoing symptoms with the subsequent cervical fusion surgery that transpired”. It was submitted that whilst the Medical Assessor provided reasons on why the surgery was not “reasonable and necessary”, he did not provide reasons on causation.
The claimant referred to an absence of pre-accident neck symptoms and the failure by the Medical Assessor to apply the correct test on causation.
The claimant otherwise referred to the inconsistent findings by Medical Assessor Cameron because he found in a certificate dated 21 February 2023 that the scarring due to the cervical fusion was caused by the motor accident and assessed this at 2% although he had not found the latter neck surgery caused by the subject motor accident.

Insurer’s submission dated 11 March 2022[48]

[48] Insurer’s bundle, p 1.

The insurer noted the substantial differences in permanent impairment assessments undertaken by the various doctors qualified by the parties.
The insurer submitted that the medical evidence and the post-accident period is not suggestive of a traumatic brain injury and otherwise referred to clause 6.164 of the Guidelines. There was no evidence of a normal initial post injury abnormal Glasgow coma score, history of documented/medically verified post-traumatic amnesia duration or brain imaging abnormality.
The contemporaneous evidence indicated that the claimant did not hit her head on the dashboard (ambulance personnel) and simply denied any loss of consciousness or head injury when assessed at hospital. The claimant attended her GP on the day following the accident and reported no lost consciousness.
The claimant first reported dizziness in November 2018 and migraines were first noted in June 2019. The brain scan in January 2019 was reported as normal.
The insurer noted there was no contemporaneous shoulder complaint, and the left shoulder was mentioned to the GP in September 2018. Dr Bodel only assessed the right shoulder. The insurer submitted that no additional complaints were made in relation to the shoulder, no investigations undertaken and no injections to that shoulder were performed. In those circumstances it submitted that the right shoulder was not injured in the motor accident.
The insurer noted that the ambulance report and hospital records do not indicate a history of back pain. However, hospital records refer to “chronic back pain … known to osteopath”. Back pain was not reported to the GP, and it was not recorded in the certificate of capacity attached to the claim form.
The insurer’s submissions in relation to the thoracic spine mirrored submissions in relation to the lumbar spine.
The insurer conceded that the claimant sustained a soft tissue injury to the cervical spine but did not concede that the claimant injured the C4/5 and C5/6 discs with bilateral radiculopathy which necessitated surgery.
The insurer submitted that the neck was not mentioned to the GP on 29 August 2018 and there was minimal mention of the neck in the GP records with no reference to radicular symptoms to the arms.
The insurer noted that the MRI scan of the cervical spine dated January 2019 was reported by Dr Rosen as showing minor degenerative changes and the diagnosis was a soft tissue injury to the neck. There was no mention of radicular symptoms to Dr Rosen.
The insurer noted that when the claimant attended Dr Pope in October 2020 when the neurosurgeon reported that the claimant had been suffering from neck pain and bilateral arm limb pain with numbness since the motor accident. The MRI scan organised by Dr Pope revealed disc bulging at C4/5 and C5/6.
The insurer submitted that the accident may have caused some aggravation of degeneration changes, however, in accordance with the opinion of Dr Smith, this would have resolved of its own accord following the motor accident by three months at most.
The insurer submitted that, consistent with its submissions as to causation of the disc bulges at C4/5 and C5/6, the need for the surgery was not related to the accident.
Insurer submitted that the claimant’s statement makes no reference to bruxism, aching jaw muscles or dental damage. It submitted in the absence of complaints from the claimant, there could be no impairment.

Insurer’s submissions dated 26 April 2023[49]

[49] Insurer’s bundle, p 484.

These submissions were filed opposing the application to review the Medical Assessment.
The insurer submitted that the Medical Assessor found that the surgery was not reasonable and necessary and therefore found that there was no need for the surgery causally related to the motor accident. The insurer submitted:
“The insurer submits that the Assessor has decided the issue of causation. Given the Assessor found that the claimant did not require surgery at all, having found that the surgery was not reasonable and necessary he necessarily found that there was no need for surgery that was causally related to the accident. He has determined that there was no evidence of surgically correctable radiculopathy prior to the surgery. He provided a clear path of reasoning for that finding. Therefore, there was no causal link between either her underlying degenerative changes, or her accident-related soft tissue injuries, and any need for surgery and on that basis that the surgery was not reasonable and necessary or causally related to the accident.”
The insurer submitted that there is no causal link between the motor accident and the surgery as there was no evidence of “surgically correctable radiculopathy prior to the surgery being performed”.

Insurer’s supplementary submissions dated 17 August 2023

These submissions are set out in full given our view that they reflect a misunderstanding of legal principle. The insurer submitted:
“The Insurer accepts all the impairments assessed by Assessor Cameron and has opposed the review.
The Insurer does not believe an examination should be required and agrees with the Panel’s preliminary review.
The Insurer does not agree with the Panel’s view of AAI -v- Phillips [2018] 1710 in this claim. One issue follows the other. The Panel must first form a view as to whether the injury is caused by the accident and then form a view as to whether the surgery was reasonable and necessary. If the panel determines that the neck injury recovered, there is no need to go to the next step as there is no continuing injury.
In the Insurer’s submission, the Panel cannot find that the surgery was not reasonable and necessary but the impairment from it is. One decision of a Medical Assessor is not binding on another Medical Assessor so that it is possible for an Impairment Assessor to disagree with a treatment dispute. See Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104 (21 August 2017). However, that is not the circumstance here, one review panel is dealing with both disputes. If the Panel was to determine the surgery was not reasonable and necessary, it follows that the Insurer is not liable for the impairment that flows from the surgery as the treatment was not provided in accordance with the obligation to pay for treatment under the Act. To find otherwise would be to undermine the obligation of the Claimant to minimise their damage as required under the Act and would open the door to Claimant’s choosing procedures to make their impairment worse.
As Assessor Cameron determined, the question of impairment of the Claimant’s neck is now bound to the question of whether the surgery was reasonable and necessary as the Claimant’s impairment now arises from her neck surgery.
The Insurer maintains that Assessor Cameron was correct in his determination that a fusion was not reasonable and necessary given the lack of evidence of radiculopathy.
In the Insurer’s submission, it is not open to the Panel to determine the surgery was not reasonable and necessary but the impairment that flows from it is. If the panel did so, that would be an error of law in the Insurer’s submission and inconsistent with the objects of the Act.”

RE-EXAMINATION

The Panel determined that the new medical assessment did not require a re-examination. Our findings indicate that we have determined the issues of causation of injury, treatment and impairment following an analysis of the medical evidence and the claimant’s statement. The distinct issue of “reasonable and necessary in the circumstances” has also been determined on the papers.
Our findings on causation of the surgery and the resulting impairment of the cervical spine means that the assessment of the claimant’s impairment is over the threshold. This is because the cervical spine impairment following the fusion must be DRE Category IV. Accordingly, there was no need for any examination to make clinical findings relevant to the assessment of the other body parts.

FINDINGS

The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[50]
[50] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[51] and Insurance Australia Ltd v Marsh.[52]
[51] [2021] NSWCA 287 at [40], [41] and [45].
[52] [2022] NSWCA 31 at [11], [21], [64].
We agree with the insurer’s submission that a decision of a Medical Assessor is not binding on a different Medical Assessor.[53] Accordingly, where the treatment dispute is determined by one Medical Assessor and impairment by another, there can be an inconsistency of findings. However, that is not the position here as both the treatment dispute and the permanent impairment dispute is determined by the Panel.
[53] Referencing Lithgow v Insurance Australia Ltd [2017] NSWSC 1104.
The major deficiency with the insurer’s submissions is that it has confused the test for recovering the cost of treatment with the test for permanent impairment. It has sought to read that part of the test for treatment (“reasonable and necessary in the circumstances”) into the test for assessing permanent impairment when the critical words do not appear as part of the test for assessing impairment.

Injury

We accept that that the motor accident caused injury to the cervical spine. The motor accident involved a rear end collision which would have caused a sudden acceleration and deceleration of the cervical spine commonly referred to as a whiplash injury.
The subsequent scan evidence shows degenerative features which would have been pre-existing but aggravated by the force of the impact. That conclusion is in accordance with the medical expertise on the Panel and generally in accordance with the medical opinion of both treating and qualified doctors.
The MRI scan of the cervical spine dated 14 January 2019 showed a central and right-sided disc/ridge complex with no central stenosis or cord compression at C4/5, disc bulge and annular fissure at C5/6 and a tiny central disc protrusion with no compression at C6/7. The pathological changes at several levels shown in a scan taken six months after the accident indicates that these features were pre-existing and rendered symptomatic by the motor accident. Further, the nature of the pre-existing pathology made the claimant more vulnerable to aggravation by an event such as the motor accident.
We accept that there was a neck injury despite the absence of neck complaint to the ambulance personnel and at hospital on the day of the motor accident. The claimant reported neck symptoms on the following day to her GP. A delay in onset of symptoms of 24 hours is medically plausible and frequently occurs.
We accept that there was an absence of prior neck symptoms based on the absence in the clinical notes, the recorded histories and the claimant’s statement that she was fit and active prior to the motor accident.
The insurer accepted that the motor accident may have caused some aggravation of degeneration changes in the cervical spine, but, in accordance with the opinion of Dr Smith, this would have resolved of its own accord within three months at most.
We make the following comments in rejecting this opinion. First, the acceptance by Dr Smith that the motor accident aggravated degenerative changes is generally inconsistent with a short-term condition. The doctor has otherwise expressed a very brief general opinion in the absence of any detailed opinion.
Secondly, the insurer has not referenced any clinical note that the condition eased. The histories recorded by the various doctors are consistent with the claimant’s position that there was an ongoing continuous complaint of neck symptoms to various treating health professionals. The reference by the insurer of an absence of reference to the neck in a clinical note on 29 August 2018 is undercut by references by other treating practitioners at that time to the neck. Further, a certificate dated 29 August 2018 referred to several injures including to the neck.[54] The insurer referred to the absence of reference in the clinical note but neglected to refer to the inclusion of a reference to the neck in the certificate on the same day.
[54] Claimant’s bundle, p 287.
Thirdly, Dr Smith’s opinion of a short-term duration of symptoms that may result from a motor accident is a general opinion only without reference to the histories recorded in this matter. The medical expertise on the Panel notes that some motor accidents may cause ongoing unremitting pain whilst other whiplash conditions may resolve. Each case is fact sensitive. Other qualified opinion in this case, such as from Dr Bodel, expressed a view, inconsistent with that expressed by Dr Smith.
We have summarised the medical evidence in the matter. That history set out earlier in these reasons, contrary to the insurer’s submission, shows a continuous complaint of pain in the lower cervical spine consistent with discogenic pain from the degenerate discs at C4/5 and C5/6.
Our conclusion is otherwise consistent with the pathology shown on the MRI scans and consistent with the reported improvement in the claimant’s condition following surgery at these levels. Logically, the improvement following surgery supports the conclusion that the levels subjected to surgery were causative of the claimant’s pain. That conclusion is otherwise consistent with Dr Pope’s opinion that the claimant was suffering from discogenic pain at the C4/5 and C5/6 levels.
The nature of the motor accident was sufficient to cause an aggravation of pre-existing but asymptomatic degenerative discs in the lower cervical spine.
Accepting the claimant bears the onus of proof on the balance of probabilities, for these reasons we are satisfied that the motor accident caused an aggravation of degenerative changes in the lower cervical spine, specifically at C4/5 and C5/6, which caused discogenic neck pain which did not resolve.
We note that the insurer submitted that there if there was “recovery” then there would be no need to move to the next step as there is no continuing injury. We agree that if there was a complete recovery of the injury then logically any subsequent treatment and impairment could not be causatively related to the motor accident. However, for the reasons provided, we are positively satisfied that the pathology in the cervical spine at C4/5 and C5/6 was aggravated by the motor accident causing discogenic pain from which the claimant did not recover.

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

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[55] 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.
[55] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[56] 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.
[56] [2018] NSWSC 1710 at [29] (Phillips).
The insurer appeared to submit that the issue of “reasonable and necessary” was the same as causation. There is no proper legal basis for this submission although that fallacy of thinking has appeared for many years in medical assessments. That fallacy of legal reasoning continues to be repeated such as in the present medical assessment under review. It does not represent a sound legal position.
The insurer focused on the absence of reported radicular symptoms prior to Dr Pope (which is correct) and otherwise submitted that the neck pain resolved after three months. The basis for the latter submission was Dr Smith’s unexplained opinion. We have addressed and rejected Dr Smith’s opinion earlier in our reasons.
The insurer submitted that there is no causal link between the motor accident and the surgery as there was no evidence of “surgically correctable radiculopathy prior to the surgery being performed”. This submission incorrectly described the reasons why Dr Pope performed the surgery. Dr Pope stated that the surgery was undertaken “for discogenic neck pain and left C5 and C6 radicular arm pain”.[57] Dr Pope also recorded that he observed herniated discs when he operated which is supportive of his diagnosis and the reasons for surgery, that is discogenic pain at the relevant levels of the cervical spine.
[57] Claimant’s bundle, p 199.
We have doubts whether the claimant was suffering from radiculopathy prior to surgery. We have earlier expressed our agreement with the insurer’s submission that radiculopathy is not mentioned in the clinical records prior to the claimant being examined by Dr Pope. In October 2020 Dr Pope noted normal neurological examination. In November 2020 Dr Pope referred to discogenic neck pain at C4/5 and C5/6 with a C6 radicular component. Normal tone, power and reflexes were again noted by Dr Pope in early February 2021. These reported symptoms were barely conclusive of radiculopathy in the context that they were not recorded by anyone prior to the claimant attending Dr Pope.
For the reasons provided earlier in respect of our conclusions on the nature of the neck injury, we are satisfied that the motor accident caused an aggravation of the degenerative changes in the lower cervical spine causing ongoing discogenic pain. The surgery would have stabilised the C4/5 and C5/6 discs and arguably reduced discogenic pain. In that respect we note that in the subsequent histories the claimant reported a reduction in neck pain with more movement. That improvement supports the link between the neck pain and the disc abnormalities at C4/5 and C5/6.
We are satisfied that the causative link between the motor accident and the surgery is established by reason of the contribution of the motor accident to the claimant’s pathology and discogenic neck pain at C4/5 and C5/6. The expressed concerns about whether there was radiculopathy present does not detract from our conclusion that the surgery was caused by the motor accident due to the ongoing relationship between the aggravation of disc pathology at C4/5 and C5/6 and the associated neck pain.

Reasonable and necessary

Ms Notaras is required to establish that the treatment is both “reasonable and necessary in the circumstances”. 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,[58] Grove J stated:[59]
“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.”
[58] [2003] NSWCA 52 (Clampett).
[59] 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.[60]
[60] 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.[61] 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.
[61] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The insurer’s submissions fail to understand the distinction between “reasonable and necessary in the circumstances” and the test of causation. The surgery was an acceptable medical procedure to address discogenic pain. However, the claimant had a lack of clear signs of radiculopathy by reason of reported normal neurological examination. The claimant was suffering from a chronic pain syndrome and was referred by Dr Pope to Dr Nazha in the months prior to the surgery. The nature of a chronic pain syndrome is counter intuitive to undergoing extensive spinal surgery because it is generally inconsistent with a positive outcome.
The claimant did not pursue the treatment with Dr Nazha. Ms Notaras stated to Dr Pope in March 2021 that she did not see Dr Nazha as she did “not want to mask symptoms”[62] which we find is an unsatisfactory reason for pursuing that treatment. These are factors detracting from the necessity of the surgery.
[62] Claimant’s bundle, p 203.
In these circumstances the Panel, comprised of two medical specialists, is not prepared to accept that the surgery was “necessary”. However, utilising the medical experience of the Panel and consistent with Dr Pope’s opinion, we are satisfied of the less demanding test[63] that the surgery was “reasonable” in that the surgery could and did alleviate the claimant’s discogenic pain.
[63] Noting the observations of Grove J discussed in Clampett (at [119] herein).

Impairment

Section 4.11 of the MAI Act provides:
“No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.”
We reject the insurer’s submission that the assessment of impairment requires that any surgical treatment relevant to the assessment must be “reasonable and necessary”. This is not the test in s 4.11 of the MAI Act which provides that the impairment is “as a result of the injury”.
The insurer’s submission otherwise ignores the discussion in cls 6.5-6.7 of the Guidelines. The discussion in those clauses of the Guidelines refers to the test of causation of injury and impairment. That discussion is consistent with the wording of s 4.11 of the MAI Act which reflects the common law test of causation. None of this was referenced in the insurer’s supplementary submission which we reject.
The insurer otherwise submitted:
“If the Panel was to determine the surgery was not reasonable and necessary, it follows that the Insurer is not liable for the impairment that flows from the surgery as the treatment was not provided in accordance with the obligation to pay for treatment under the Act. To find otherwise would be to undermine the obligation of the Claimant to minimise their damage as required under the Act and would open the door to Claimant’s choosing procedures to make their impairment worse.”
There are a number of errors with respect to this submission. First, the submission confuses liability for treatment and care with the issue of determining the extent of impairment. Secondly, there is no requirement in the MAI Act that the test for determining impairment is dependent upon the claimant establishing that the insurer is liable for treatment.
Thirdly, the insurer suggests that claimants generally, and presumably this claimant, undertook the surgery to make made her impairment worse. Not only is there no factual basis for this submission, but we also otherwise reject it on the facts. We have explained and accept why Dr Pope recommended and undertook the surgery.
We otherwise reject this submission as inconsistent with relevant principles of statutory construction. The insurer otherwise introduced an interpretation of the statute based on intention, one that favoured its interpretation. Not only has the insurer failed to address the clear words of causation in s 4.11, the suggestion of interpreting legislation in accordance with “purpose” is contrary to well established High Court authority.[64]
[64] See the discussion in Dhupar v AAI Ltd [2023] NSWWWPICPM 99 at [91]-[92].
The insurer has submitted a purpose favourable to its position without regard to the clear words of the section.
Our earlier findings show that we accept that the surgery was “reasonable” but the Panel was otherwise not prepared to accept that it was “necessary”. Those findings included that the claimant sought the treatment because of her neck pain with the intention of alleviating that neck condition. The suggestion by the insurer that the claimant was pursuing a path of not minimising her damage ignores her choice in presumably reducing her neck pain so that she minimises her need for ongoing treatment, improve her quality of life and presumably increase her work capacity. The insurer’s suggestion that the claimant was required to minimise her damage fails to address the claimant’s intention to seek treatment which may reduce other heads of damage.
The insurer otherwise relied on Medical Assessor Cameron’s “legal” opinion that “the question of impairment of the Claimant neck is now bound to the question of whether the surgery was reasonable and necessary as the Claimant’s impairment now arise from her neck surgery”. The insurer failed to refer to any relevant legal principle to support this submission.
For the reasons provided we reject that submission which is based on an incorrect legal basis applied by the original Medical Assessor.
Our earlier reasons establish that the claimant suffered a neck injury with ongoing pain. She pursued various treatments and ultimately came to fusion surgery, reasonably undertaken by a neurosurgeon, for treatment of a painful neck condition caused by the motor accident.
In these circumstances the claimant has clearly satisfied that the surgery was caused by the motor accident. The claimant is assessed as DRE category IV due to multi-level structural compromise of the cervical spine as a result of the fusion surgery[65] and is assessed at 25% impairment.[66]
[65] See Table 6.7 (p 103) and cl 6.145 of the Guidelines.
[66] Table 73 of AMA 4.
The impairment is self-evidently permanent as the surgery is irreversible. The impairment is otherwise permanent because it has “been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment”.[67]
[67] Clause 6.19 of the Guidelines.
We are not satisfied that there should be any deduction pursuant to clause 6.31 of the Guidelines. The Guidelines provide for the need for objective evidence of a symptomatic impairment in the same region. We refer to our earlier findings of the claimant’s asymptomatic pre-existing neck condition. We otherwise find that there is no objective evidence of symptomatic impairment in the cervical spine prior to the motor accident.
For these reasons the degree of permanent impairment of the claimant as a result of the injury caused by a motor accident is greater than 10%.

CONCLUSIONS

The certificate issued by Medical Assessor Cameron on permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
The Panel has concluded, for different reasons than those provided by the original Medical Assessor, that the certificate for treatment and care is confirmed.

[2023] NSWPICMP 433

1 September 2023