Osmond v QBE Insurance (Australia) Limited
[2024] NSWPICMP 268
•2 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Osmond v QBE Insurance (Australia) Limited [2024] NSWPICMP 268 |
| CLAIMANT: | Danielle Osmond |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 2 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant injured when her stationary vehicle was rear-ended at speed; two issues are in dispute arising from the findings of the same single Medical Assessor (MA); the first dispute is about whether the proposed treatment by way of a right wrist arthroscopic assisted volar ganglion excision is reasonable and necessary and is related to the right wrist injury caused by the accident; meaning of expression “reasonable and necessary” considered; the second dispute is about whether the injuries to the cervical spine and right wrist were threshold injuries; Held – the single MA’s findings in relation to the proposed treatment and threshold injury to the right wrist are confirmed; the MA’s finding in relation to threshold injury to the cervical spine is revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. The Review Panel revokes the certificate of Medical Assessor Medical Assessor Jonathan Herald dated 16 May 2023 and issues a replacement certificate as follows: 1. The following injury caused by the motor accident, is a non-threshold injury for the purposes of the Act: · cervical spine – C3/4-disc protrusion. 2. The following injury caused by the motor accident is a threshold injury for the purposes of the Act: · right wrist – sprain. 3. The Review Panel confirms the findings of Medical Assessor Jonathan Herald in relation to the proposed treatment by way of a right wrist arthroscopic assisted volar ganglion excision recommended by Dr Bernard Schick on 12 May 2022, in that: (a) the treatment is reasonable and necessary; (b) the treatment is related to the right wrist injury, and (c) the treatment will improve the recovery of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
On 9 December 2021, the claimant, Danielle Osmond, was injured in a motor accident when her vehicle was rear ended by a vehicle insured by the insurer, QBE.
As a result of the accident, the claimant claimed that she sustained injuries to the cervical spine, thoracic spine, lumbar spine, right arm, right shoulder, both wrists, right leg, right knee and right ankle.
The insurer accepted liability to pay the claimant statutory benefits arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. From motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
On 17 May 2022 (within the first 26 weeks), the insurer declined a request from orthopaedic surgeon, Dr Bernard Schick to perform a right wrist arthroscopic assisted volar ganglion excision. The claimant requested a review but upon review, the insurer affirmed its original decision.
On 2 February 2022, the insurer issued a post-26 weeks liability decision, finding that the claimant sustained only “minor injuries” in the accident. The claimant requested a review but upon review, the insurer again affirmed its original decision.
It is to be noted that the MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” and “minor injuries” are to be expressed as a “threshold injury” and “threshold injuries”, respectively. However, the definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
THE DISPUTES
Two disputes have therefore arisen between the parties.
The first dispute is about whether the claimant’s physical injuries resulting from the accident are threshold injuries for the purposes of the MAI Act (the threshold injury dispute).
The second dispute is about whether the treatment recommended by Dr Bernard Schick on 12 May 2022, by way of a right wrist arthroscopic assisted volar ganglion excision:
(a) is reasonable and necessary;
(b) is related to an injury to the right wrist injury caused by the accident, and
(c) if the right wrist injury is determined to be a threshold injury, whether such treatment will improve the recovery of the claimant.
(the treatment and care dispute)
To resolve the disputes, the claimant made an application pursuant Division 7.5 of the MAI Act, for medical assessments by the Personal Injury Commission (Commission).
According to Schedule 2, cl 2 of the MAI Act, both the threshold injury dispute and the treatment and care dispute are declared to be medical assessment matters.
Medical assessment matters are determined in accordance with Division 7.5. According to
s 7.20 of the MAI Act, the matters are determined at first instance by a Medical Assessor and according to s 7.26 of the MAI Act, on review, by a review panel.Both disputes were referred at first instance to Medical Assessor Jonathan Herald for assessment.
MEDICAL ASSESSMENT UNDER REVIEW
On 16 May 2023, Medical Assessor Herald issued a Medical Assessment Certificate in relation to both disputes.
As to the threshold injury dispute, the Medical Assessor determined that the following injuries were caused by the accident, and were threshold injuries for the purposes of the MAI Act:
· cervical spine – soft tissue injury, and
· right wrist sprain.
It is to be noted that the only injuries that were referred to the Medical Assessor in the application by the claimant for assessment, were injuries to the cervical spine and the right wrist.
As to the treatment and care dispute, the Medical Assessor determined that the right wrist arthroscopic assisted volar ganglion excision recommended by Dr Schick on 12 May 2022, that the treatment is reasonable and necessary, that it relates to the right wrist injury caused by the accident, and that it will improve the recovery of the claimant.
THE REVIEW APPLICATIONS
The medical assessments of the Medical Assessor were subject to two separate review applications.
On 7 June 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment relating to the treatment and care dispute, to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
On 9 June 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President to refer the medical assessment relating to the threshold injury dispute, to a review panel for review. That application was also made within the prescribed time.
The President referred both medical assessments to the same review panel for review, being satisfied that there was reasonable cause to suspect that they were incorrect in a material respect, having regard to the particulars set out in the respective applications.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the review panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the review panel is constituted by Medical Assessor Drew Dixon, Medical Assessor Clive Kenna and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[3]
[3] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[5]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[5] Section 7.26(6) of the MAI Act.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on 1 December 2017 to 31 March 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[6]
Causation of injury
[6] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[7]
[7] See s 3B(2) of the Civil Liability Act 2002.
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic 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 contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a 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.”
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions in relation to the threshold injury dispute may be summarised as follows:
(a) the Medical Assessor did not properly consider the issue of causation when he concluded that the claimant had sustained a right wrist sprain which is a threshold injury and that the soft tissue aggravation of the underlying degenerative changes would also be classified as a soft tissue injury;
(b) the Medical Assessor did not properly consider the issue of causation when he concluded that although there was a partial rupture of the underlying structures to cause underlying disc fractures at the C3/C4 level to cause a disc protrusion, the fact that there is desiccation or dehydration of the disc, he believed that this is a chronic feature rather than an acute feature;
(c) the claimant was relatively young (39 years of age at the time of the accident) and had no pre-existing neck pain. The evidence is that the claimant was hit from behind by a vehicle travelling around 60kmph. Her car was written off. As a result of the impact her vehicle spun into incoming traffic. The claimant submitted that this speaks of a violent collision;
(d) the claimant submitted that given the violent impact of the collision, the absence of pre-existing neck pain and having regard to the appropriate issues of causation, the proper conclusion ought to be that the aggravation of the injury to the right wrist and the damage caused to the spinal disc was, on the balance of probabilities caused by the motor accident, and
(e) the claimant pointed out that a rupture or partial rupture of the spinal disc is an exception to the statutory provision that a soft tissue injury is a threshold injury under s 1.6(2) of the MAI Act.
The Panel notes although the claimant made submissions that there was a right wrist injury caused by the accident, there were no submissions as to why the injury is a non-threshold injury.
In relation to the treatment and care dispute, the claimant did not make any further submissions about the proposed medical treatment being reasonable and necessary, except to say that the single Medical Assessor was consistent in his approach to finding that the right wrist injury was one of aggravation and that causation was satisfied in the event that the contribution from the accident was more than negligible.
Insurer’s submissions
The insurer’s submissions may be relevantly summarised as follows:
(a) the insurer submitted that having regard to the definition of threshold injury and a soft issue injury in s 1.6 of the MAI Act, the claimant appeared to take issue with diagnosis rather than causation. The Medical Assessor found that the cervical spine injury was accident-related, but that it was a soft tissue injury;
(b) on the available evidence, there was no suggestion that the claimant presented with cervical radiculopathy within the meaning of cls 5.7 and 5.8 of the Guidelines;
(c) the MRI scan of cervical spine performed on 21 December 2021 showed a small right foraminal disc protrusion at C3/C4 with mild foraminal narrowing and right facet arthropathy at C2/C3 and C3/C4. The clinical notes of Royal Randwick Medical Centre showed that by 10 January 2022, one-month post-accident, the claimant’s neck condition had improved;
(d) the insurer relied on the findings of Dr Antoun that the disc desiccation at C3/C4 was degenerative in nature. In the absence of osseous, annulus or ligamentous injury/pathology, Dr Antoun was unable to comment as to whether the disc bulge at the same level was acute or chronic;
(e) similarly, in the absence of any associated bony, annular or ligamentous injury, the Medical Assessor concluded that the claimant’s neck condition was an aggravation of underlying degenerative changes rather than an acute disc rupture;
(f) the insurer submitted that any injury to the right wrist caused by the accident was limited to a non-specific dorsal mid-carpal sprain which is a non-threshold injury, and
(g) based on the available evidence, and in particular, the history of pre-accident right wrist complaints, the volar radial ganglion revealed in the MRI scan of the right wrist on 25 January 2022 was a long-standing, pre-existing condition, and merely a coincidental finding within the imaging study. It followed the proposed right wrist arthroscopic assisted volar ganglion excision recommended by
Dr Schick on 12 May 2022, did not relate to any injury to the right wrist caused by the accident.
MATERIAL BEFORE THE REVIEW PANEL
The Panel considered all the material filed by the parties. The material included the claimant’s bundle of documents (22 pages), the insurer’s bundle of documents (162 pages), the claimant’s late documents (physiotherapy records) and the parties’ submissions.
EVIDENCE BEFORE THE REVIEW PANEL
The evidence may be conveniently summarised as follows.
The claimant’s personal injury claim form
In her application for statutory benefits dated 14 December 2021, the claimant described her injuries as follows:
“ - Neck pain, predominantly centre of neck + right side
- Stiffness in neck
- headaches
- nausea
- anxiety
- pain radiating down right side, including right shoulder, right arm, right side of upper + lower back, right hip, right leg + knee especially, right ankle and both wrists.”
Pre-accident medical records
The available evidence regarding pre-accident history of treatment and pre-existing conditions were the general practitioner records of the Royal Randwick Medical Centre (the GP records) for the period from 9 December 2020 to the date of the accident.[8] There was no evidence of any pre-accident treatment of any condition relating to the neck or right wrist in these records.
[8] Pages 96-99 of the insurer’s bundle.
Post-accident medical records
The GP records recorded the following clinical notes:
(a) on 10 December 2021 – claimant in motor accident hit from behind at speed, complaining of neck soreness and stiffness, both wrists painful, pain in right hip radiating to right ankle, right shoulder and “right back”. Assessment of ‘ligamentous strain’;[9]
(b)
on 14 December 2021 – neck pain with radiculopathy – MRI scan requested – hit from behind with right foot on brake and head turned to left looking at rear view mirror neck pain radiation to right arm, pain in right hip, knee and ankle.[10]
On examination of the neck – reduced range of movement, no neurological signs;
(c) on 22 December 2021 – MRI shows C3-4 disc with mild right sided foraminal narrowing – told right arm symptoms are from ribs not disc;[11]
(d) on 10 January 2022 – ongoing pain and swelling in right wrist – MRI requested; neck improved range of movement better but still has pain turning it; right wrist still sore; on examination – good range of movement but pain at end range; tender distal radicular joint,[12] and
(e) on 28 January 2022 – disc MRI findings (right wrist); wrist brace for work.[13]
[9] Page 99 of the insurer’s bundle.
[10] Page 100 of the insurer’s bundle.
[11] Page 100 of the insurer’s bundle.
[12] Page 101 of the insurer’s bundle.
[13] Page 101 of the insurer’s bundle.
In a referral letter for physiotherapy dated 14 December 2021, GP, Dr Jill McDonell of the Royal Randwick Medical Centre, noted that the claimant had neck pain with loss of range, some ribs that were not well aligned with positive right medical and ulnar brachial plexus signs and a large right upslip.[14]
[14] Page 113 of the insurer’s bundle.
In a certificate of fitness issued on 14 December 2021, Dr McDonell stated that her diagnosis was as follows:
“Motor vehicle accident, disc protrusion in neck, with arm pain radiation, pelvic acute malalignment, right ankle ligament tearing, right wrist ligament tear with exacerbation of ganglion.”[15]
[15] Page 50 of the insurer’s bundle.
An MRI of the cervical spine performed by Dr Sohrabh Memon on 21 December 2021 recorded the following conclusion:
“Upper-mid cervical disc dessication with right foraminal C3/4 disc protrusion and suspected C2/3 and C3/4 facet arthropathy. No evidence of osseous injury or ligamentous injury. Correlation with the distribution of the patient’s radiculopathic symptoms.”[16]
[16] Page 146 of the insurer’s bundle.
In a report to Dr McDonell dated 4 January 2022, physiotherapist Colin Hao recorded his initial assessment of the cervical spine on 18 December 2021, as follows:
“- Range of Motion
Flexion: 30°
Extension: 30°
Lateral flexion: R = 15° L = 30° reproductive of right sided neck pain
Rotation: R = 10cm reproductive of pain, L = 8cm reproductive of pain
- Spurling’s negative
- Tender right suboccipital
- Stiff C7, T1”[17]
[17] Page 33 of the insurer’s bundle.
In an Allied health recovery request form dated 4 January 2022, Mr Hao noted that the claimant reported being rear ended by vehicle going 60kmph while at the traffic lights and complaining of right sided upper and lower body pain and stiffness and intermittent paraesthesia in the right forearm and right posterior thigh. His diagnosis on clinical assessment was “whiplash Grade III, large right SIJ upslip”.[18]
[18] Page 62 of the insurer’s bundle.
The clinical records of Sports Physiotherapy South showed that there were complaints of pain and stiffness in the neck at several physiotherapy sessions from February to
May 2022.[19]
[19] The claimant’s late documents.
An MRI of the right wrist performed by Dr Faisal Rashid on 25 January 2022 made the following conclusions:
“1. The main positive finding is supportive MRI evidence in the given clinical context for a nonspecific dorsal mid carpal sprain injury.
2. Volar radiocarpal ganglion which has likely predated the presentation injury.
3. Mild median neuropathy of the distal carpal tunnel on the background of some thickening of the ulnar bursa which may be subclinical.”[20]
[20] Page 106 of the insurer’s bundle.
Dr Bernard Schick
The claimant saw orthopaedic surgeon, Dr Bernard Schick on 8 February 2022 for follow up treatment of her wrist injuries. In his report of the same date, Dr Schick noted the MRI showed a volar right wrist ganglion and dorsal extrinsic ligament sprain. He was of the view that considering the claimant had no wrist pain before the accident, the volar wrist ganglion has been rendered symptomatic by the accident.[21]
[21] Page 3 of the claimant’s bundle.
Dr Schick requested musculoskeletal radiologist, Dr John Korber for an assessment. On assessment, Dr Korber was of the opinion that the volar wrist ganglion was symptomatic. The wrist was aspirated and injected with some good relief but is now as bad as pre-operatively.[22]
[22] Page 5 of the claimant’s bundle.
On a further visit on 10 May 2022, Dr Schick recommended an arthroscopic assisted volar ganglion excision.[23]
[23] Page 5 of the claimant’s bundle.
Dr Tony Antoun
In a report dated 16 May 2022, prepared at the request of the insurer, GP, Dr Tony Antoun was of the view that the reported ganglion on the MRI of the right wrist was long- standing pre-dating the accident, and therefore, not related or directly caused by the motor accident.[24]
[24] Page 25 of the insurer’s bundle.
In a report dated 21 January 2022, Dr Antoun expressed the opinion that the documents he reviewed did not describe any clinical or true signs of a cervical radiculopathy.[25]
[25] Page 28 of the insurer’s bundle.
Dr Brian Stephenson
In a report issued on 3 June 2022 following an examination of the claimant at the request of her solicitors, orthopaedic surgeon, Dr Stephenson concluded that there was asymmetric loss of range of motion of the cervical spine but no radiculopathy in the upper extremities. He found that there was a measurable restriction of range of motion in the right wrist and made a diagnosis of manifestation of painful volar ganglion wrist on the right arm.[26]
DIAGNOSIS AND REASONS – THRESHOLD INJURY
[26] Page 8 and 14 of the claimant’s bundle.
Cervical spine
After a review of the available evidence, the Panel accepts that the claimant sustained a whiplash type injury to her cervical spine caused by the motor accident.
The Medical Assessors of the Panel have reviewed the MRI of the cervical spine performed on 21 December 2021.
The imaging showed a right foraminal C3/4-disc protrusion and suspected facet arthropathy at C2/3 and C3/4. In the view of the Medical Assessors of the Panel, the disc protrusion represents a ruptured disc protrusion through a tear in the annulus fibrosis. This was caused by the injury to the cervical spine sustained in the accident.
Section 1.6(2) of the MAI Act defines a soft tissue injury by reference to a variety of tissue types or body parts and then goes on to state that a soft tissue injury is “not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
In this case, there is a rupture of the outer layer of a vertebral disc or cartilage. It follows that this is a non-threshold injury.
Right wrist
The Panel finds that the claimant was involved in a serious motor accident and as a result, she jarred her hands on the steering wheel on impact.
As a result of the injury, the claimant required arthroscopic surgery to the right wrist.
The MRI of the right wrist on 25 January 2022 was reported as showing a non-specific dorsal mid carpal sprain injury and volar radiocarpal ganglion which likely pre-dated the presentation injury and that there was mild median neuropathy of the distal carpal tunnel on the background of some thickening of the ulnar bursa.
The Panel considers that this is consistent with jarring the right wrist on the steering wheel and that the motor accident has caused a sprain injury to the right wrist. This is a soft tissue injury and therefore a threshold injury.
The Medical Assessors of the Panel considers that on the balance of probabilities, the dormant ganglion has been rendered symptomatic as a result of the jarring injury to the right wrist.
TREATMENT AND CARE
Section 3.24 of the MAI Act provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
…”
Accordingly, in order to receive statutory benefits the claimant must establish that the treatment concerned:
(a) is reasonable and necessary in the circumstances;
(b) relates to an injury resulting from the subject accident;
(c) that the cost of the treatment is reasonable, and
(d) if applicable, that any travel and accommodation expenses incurred in obtaining the treatment are reasonable and necessary.
As a medical assessment matter under Sch 2, cl 2 (b) of the MAI Act, the Panel has jurisdiction to determine disputes relating to matters (a) and (b). Disputes relating to matters relating to matters (c) and (d) are determined by others.[27]
[27] See Sch 2,cl 1(j) of the MAI Act.
The expression “reasonable and necessary” is not defined in the legislation. It follows that the expression falls to be considered in its statutory context and in accordance with the objects of the MAI Act. These include:
“to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.”[28]
[28] Subsection 1.3(2)(a) of the MAI Act.
“Treatment and care” is defined in the MAI Act to mean:
“(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”[29]
[29] Section 1.4 of the MAI Act.
The expression “reasonable and necessary” in relation to treatment occurs elsewhere in the MAI Act, notably at ss 3.17 and 6.5.
Section 3.17 provides:
“(1) An insurer must require an injured person who is in receipt of weekly payments of statutory benefits under this Division to undertake such reasonable and necessary treatment, rehabilitation or vocational training as the Motor Accident Guidelines may require.
(2) If an injured person fails without reasonable excuse to comply with a requirement of an insurer under this section, the person’s entitlement to weekly payments of statutory benefits under this Division is suspended while the failure continues.”
Section 6.5 provides:
“(1) A claimant has a duty to take all reasonable steps to minimise loss caused by injury resulting from a motor accident.
(2) This duty of a claimant includes the following duties—
(a) the duty to undergo reasonable and necessary treatment and care and do all such things as may be reasonable and necessary for the claimant’s rehabilitation,
(b) the duty to commence or return to work as soon as reasonably practicable.
(3) If a claimant fails to comply with a duty arising under this section, the insurer may, if authorised to do so by the Motor Accident Guidelines, suspend payment of weekly payments of statutory benefits to the claimant during any period that the failure to comply continues. The person forfeits their entitlement to weekly payments of statutory benefits during the period of any such suspension.”
Informed by those provisions, and the objects of the Act, the Panel finds that for the proposed medical treatment in dispute, to be considered “reasonable and necessary in the circumstances”, as required by s 3.24(2), it should be:
(a) medically indicated, and not, for example, scientifically unproven, or given in circumstances where the risks of undertaking the treatment are likely to outweigh any benefit to the claimant, and
(b) likely to optimise the claimant’s prospects of recovery and maximise their return to work or to their other activities.
While the Panel considers “reasonable and necessary” to be a composite expression, the same result may be obtained by giving each of the words “reasonable” and “necessary” a discrete area of operation. A treatment is reasonable if it conforms to paragraph 76(a) and necessary if it conforms to paragraph 76(b).
Is the proposed treatment reasonable and necessary?
The Medical Assessors of the Panel note that, despite cortisone injections, painful symptoms have kept recurring. In these circumstances, the Medical Assessors of the Panel find that the proposed treatment by way of a right wrist arthroscopic cyst and volar ganglion incision, as recommended by Dr Schick on 12 May 2022, is appropriate treatment and reasonable and necessary in the circumstances. The treatment is likely to be effective in relieving the claimant’s pain and will thereby optimise her prospects of recovery and returning to work and other activities.
Is the proposed treatment related to the injury?
As previously indicated, the Medical Assessors of the Panel found that the dormant ganglion in the right wrist was rendered symptomatic by the injury to the right wrist caused by the motor accident. The proposed treatment therefore relates to an injury caused by the motor accident.
CONCLUSION
The review is a new assessment of all matters with which the original medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen[30] and Insurance Australia Ltd v Marsh.[31]
[30] [2021] NSWCA 287 at [40], [41] and [45].
[31] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the findings and conclusions of the Panel’s Medical Assessors.
Accordingly, the Panel finds that the injury to the cervical spine – C3/4-disc protrusion, is not a threshold injury for the purposes of the MAI Act.
The Panel finds that the injury to the right wrist – sprain, is a threshold injury for the purposes of the MAI Act.
The Panel confirms the findings of Medical Assessor Jonathan Herald in relation to the proposed treatment by way of a right wrist arthroscopic cyst and volar ganglion incision, as recommended by Dr Schick on 12 May 2022.
The Panel has reached different conclusions in regard to the issue of threshold injuries. The Panel has therefore issued a replacement certificate which forms part of this determination.
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