Pope v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Pope v AAI Limited t/as GIO [2024] NSWPICMP 614
CLAIMANT:	Karl Pope
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Rhys Gray
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	30 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a front seat passenger in a car hit from behind by another car; claimant had pre-existing degenerative spinal disease and previous surgery L5/S1 decompression surgery; causation; injuries to claimant’s spine at the L5/S1 level are pre-existing injuries not caused by the motor accident; effect of second subsequent motor accident considered; Held – the subject accident did not cause or materially contribute or cause a material aggravation to the claimant’s pre-existing nerve root compression at the L5/S1 level; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated 17 November 2022 regarding treatment and care and issues a replacement certificate determining that: 1. The following treatment and care of a: · right L5/S1 decompression surgery, does not relate to the injury caused by the motor accident. 2. The following treatment and care of a: · right L5/S1 decompression surgery, is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

On 17 April 2021, Mr Karl Pope (the claimant) was a front seat passenger in a Ford Ranger year model 2015, driving on Richmond Road, Berkshire Park. His car stopped suddenly and was hit from behind by another car which failed to stop. His car was pushed into and hit the car in front.
After the accident Mr Pope did not go to hospital. NSW Police and Ambulance did not attend the accident scene.
The claimant was involved in a workplace accident in 2007. He has also reported being involved in two motor vehicle accidents. The first occurred on 17 April 2021 which is the subject of this review. The second motor accident occurred in June 2024.
AAI Ltd trading as GIO Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Pope under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 23 July 2021 the insurer wrote to the claimant and advised that it had determined that he had sustained minor injuries and that the insurer denied liability to make statutory benefits payments beyond the first 26 weeks. The insurer also advised that it was not obliged to continue paying for the claimant’s treatment and care expenses from
16 October 2021.
By letter dated 21 October 2021 the insurer wrote to the claimant and advised that the proposed L5/S1 decompression surgery is not considered to be reasonable and necessary treatment and care.
In an email dated 21 October 2021 the claimant’s solicitors sought an internal review of this decision. The insurer determined its internal review decision on 4 November 2021. [1] The outcome of the internal review was that the decision to decline the L5/S1 decompression surgery was confirmed.
[1] Claimant’s bundle RA 6 p 36.
By letter dated 22 June 2022 the claimant’s employer wrote to him terminating his employment because he was unable to return to work and his pre-injury duties.[2] It was noted that Dr Azhar Khan confirmed that the claimant will not be able to return to work in any capacity, now or in the future. The employer decided to terminate his employment effective
[2] Claimant’s bundle RA 19 p 343.
2 June 2022 due to his inability to perform the inherent duties of his role as a Pressure Maintenance worker.
Medical Assessor Philip Truskett issued a certificate dated 17 November 2022.[3] In that certificate he certified that the treatment and care of right L5/S1 decompression surgery does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances.
[3] Claimant’s bundle AD 3 pp 12- 17.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(b) 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 (Entitlement to statutory benefits for treatment and care)”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[4]
[4] Section 7.20 MAI Act.
The claimant’s solicitors have filed an application with the Personal Injury Commission
(Commission) seeking a Panel review of the certificate of Medical Assessor Truskett.

ASSESSMENT UNDER REVIEW

The dispute was initially referred to Medical Assessor Truskett who assessed Mr Pope and issued a certificate dated 17 November 2022.
Medical Assessor Truskett medically examined the claimant on 4 November 2022. He referred to the history of the motor accident, the history of symptoms and treatment before and following the motor accident, provided a summary of relevant medical documentation and detailed the current symptoms and set out the current and proposed treatment.
The claimant described the accident to Medical Assessor Truskett as follows. The claimant recounted that he;
“…. was a front seat passenger in a Ford Ranger year model 2015, driven by his stepson, Brett Short. He was wearing a seatbelt. The car was fitted with headrests, airbags were fitted and not deployed. It was a fine day. They were proceeding along Richmond Road, Berkshire Park in a line of traffic. The traffic was slowing. The vehicle in front suddenly stopped. They were travelling at approximately 60 to 70 km/hour. His driver applied the brakes and stopped successfully. The vehicle, however, was struck from behind by another vehicle and pushed forward into the vehicle in front of it.
He was not knocked out. He was able to get out of the vehicle. The vehicle was driveable and later repaired at the cost of $8000. The police and ambulance were not called. At that time, he had no real pain but had an onset of back pain and buttock pain to his right knee a few hours later.”
Medical Assessor Truskett’s assessment of the causation and reasons were as follows:
“Mr Karl Pope was involved in a motor vehicle accident on 14 April 2021 [sic] as described. It is well established that he had previous back injury in 2007 which necessitated an L5/S1 discectomy performed by Dr Elliot. Although he stated he fully recovered, it is well documented in his general practitioner files that he had recurrent episodes of back pain. He also had complaints of back pain and right sciatic radiation documented in 2015 and March 2017 as described.
He had been referred to Dr McMasters at that time for assessment of this.
Imaging demonstrated stenosis of the right L5/S1 foramen causing S1 nerve root compression. This is clearly pre-existing.
He was involved in a motor vehicle accident on 14 April 2021, where he had a further flare of his back pain and S1 nerve root irritation on the right.
When his general practitioner records are reviewed, this was well documented. However, a note on 4 August 2021, it described that his back pain was now better and he was walking normally. This would suggest that following three months that the aggravation to his pre-existing condition then resolved.
However, he returned on 18 September 2021 with a further flare-up.
It is my view that this flare up is the manifestation of progression of his pre-existing condition and not the consequence of the aggravation occurred in the motor vehicle accident on 14 April 2021. From imaging described above, it is clear that this foraminal stenosis has been present for many years.
It is therefore my view that the motor vehicle accident of 14 April 2021 is not material to his current state. His current state reflects progression of his pre-existing condition. On this basis, causation has not been established. On this basis, I would conclude that the request for right L5/S1 decompression surgery is not related to the accident…..
On examination today, he demonstrates symptoms and signs of right S1 nerve root compression at the L5/S1 foraminal stenosis.
It would be appropriate that he undergo decompression of this nerve root at the foramen which would likely impact on his right leg symptoms. This will therefore be considered reasonable and necessary but is not caused by the motor vehicle accident. This is because the aggravation ceased and then he had a further flare up which relates to his pre-existing condition and not a continuance of the effect of the motor accident.
Conclusion: The following treatment and care is not reasonable and necessary in the circumstance that is requested for right L5/S1 decompression surgery and the following treatment and care is not reasonable and necessary in the circumstance that is the request for right L5/S1 decompression surgery.”
Medical Assessor Truskett then certified that the treatment and care of right L5/S1 decompression surgery does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Truskett was lodged within 28 days of the date on which the certificate was made available to the parties.
On 2 February 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5] The delegate’s reasons were that the Medical Assessor did not address whether the claimant’s requirement for surgery was accelerated by the subject accident. She also noted that the Medical Assessor did not appear to provide further reasons addressing whether the subject accident has materially contributed to the need for treatment.
[5] Claimant’s bundle RA 2 pp 10- 12.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 10 October 2023 and 7 June 2024 directing that the parties file and serve bundles of documents and indicating that it intended to re-examine the claimant on 2 July 2024.
Both parties sought to lodge hundreds of pages of medical and other records and documents that were late. On 11 December 2023 the claimant’s solicitors lodged an Application to Admit Late Documents Form seeking to lodge medical from Bidwell Medical Centre and Dr Ying Min Law. The insurer lodged its review bundle late on 6 May 2024.
Both parties lodged further Application to Admit Late Documents Forms dated 23 and
26 August 2024 seeking to lodge photos of the damaged cars, dash cam footage of the accident and further written submissions.
The Panel received submission consenting to the lodgement of late lodgement of documents. The Panel met and considered these further submissions and evidence on
27 August 2024. The Panel has considered these applications and has decided under rule 67 of the Personal Injury Commission Rules 2021 to admit all these late documents in the interests of justice.

ASSESSING THE CAUSATION OF INJURIES

The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[9] his Honour Justice Wright stated at [35]:
[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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
6.5An 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.
6.6Causation 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 judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[10] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make “a non-medical informed judgement” as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43.In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[10] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41],
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[11] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71.   The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72.   Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73.   The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74.   For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[11] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44],

EVIDENCE BEFORE THE REVIEW PANEL

Application for Personal Injury Benefits

The Application for Personal Injury Benefits dated 21 April 2021 notes the reported injuries as including sore neck, pain in lower back radiating down to the right leg and into the right foot which feels numb.
In the application the claimant described the accident as follows:
“Before we came to a stop we were doing approximately 60 kilometres per hour in an 80 kilometre per hour zone as the traffic was very busy. We came to a complete halt due to the traffic in front stopping. The car behind did not stop and hit us from behind and pushed us into the car in front. The car in front sustained no damage as we hit its tow ball. We had front and rear damage. The car that hit us looked like a write off and had to be towed away.”

Dash cam and photos of two cars in subject accident

Photographs of the two vehicles involved in the subject accident were supplied by both parties to the Commission on 21 August 2024. These photos show damage to the rear bumper and tailgate of a blue Ford Ranger and damage to the front bumper, bonnet and front left-hand side of a silver Toyota Camry.
There is also dash cam footage of about 1 minute showing the subject motor accident and about 20 seconds after the accident. The footage shows the claimant’s vehicle traveling in a line of traffic at about 64kmph and the claimant’s vehicle being hit from behind while it was travelling about 39kmph. The insurer’s solicitors submit that the footage shows the claimant trying to separate two vehicles immediately after the accident. The claimant’s solicitors submit the video footage does not show the claimant but some unknown person.
The Panel have viewed the photos and the dash cam footage of the accident and have decided to admit the evidence. The Panel has noted the recorded speed of the accident but rejects the insurer’s submissions dated 23 August 2024 that it shows the claimant attempting to separate the two vehicles.

Police and Ambulance reports

The NSW Police and ambulance did not attend the accident and there are no reports.

Hospital reports

Immediately after the subject accident the claimant did not attend any hospital instead he attended his treating general practitioner (GP) Dr Ying Miin Law on the afternoon of the accident.
There are a number of hospital notes relating to the operations that Mr Pope had on his lower back which have been provided by the parties and considered by the Panel.

Treating medical evidence
Pre-accident treating records

There are comprehensive medical records available for the claimant’s medical history prior to the subject motor vehicle accident.
In bundles of documents the parties produced over 1,200 pages of clinical and treating medical records for the claimant prior to the accident. The Panel has reviewed all the pre-accident treating medical records produced by both the claimant and the insurer.
There are detailed medical records available from Rooty Hill Medical and Dental Centre from about August 2004 to October 2021. These records show that Mr Pope made persistent and repeated complaints about ongoing right leg and low back pain.[12]
[12] Claimant’s bundle RA 15 pp 61 – 255.
On 8 September 2004, the claimant consulted Dr Yang Wang about right lower back pain.
On 9 and 28 September 2004 the claimant reported low back pain radiating to his right leg.
On 7 August 2005 the claimant complaining of back pain bending forward to lift something at work radiating to the right side 10/10.
On 16 August 2005, CT showed disc protrusion L4/5, L5/S1.
On 2, 6, 12, 16, 17, 18, and 21 July 2006 the claimant consulted Dr Tan Nguyen complaining of back pain. On 3 July 2006 the claimant described the pain as 9/10. [13]
[13] Claimant’s bundle RA 15 p 151.
On 1, 3, 17, 21 and 27 August 2006 the claimant consulted Dr Tan Nguyen complaining of back pain.
On 8, 11 and 17 September 2006 the claimant consulted Dr Tan Nguyen complaining of “back pain again today”. [14] Pain was described as 8/10. Dr Nguyen noted a limited range of motion in the claimant’s back.
[14] Claimant’s bundle RA 15 p 150.
On 1, 2, 4, 18, 22, 26 and 31 July 2007 the claimant consulted Dr Tan Nguyen and Dr Yang Wang complaining of back pain.
On 31 July 2007, consultation documented recent assessment by Dr Elliot, awaits MRI.
On 19 November 2007 the claimant consulted Dr Tan Nguyen who wrote that he saw
Dr Elliot today and suggested an operation. Dr Nguyen noted that the patient is not keen and wants a second opinion.
On 9 December 2007 the claimant saw Dr Tan Nguyen, postoperative three days ago.
On 5 and 22 February 2008 and again on 9 March 2008, Dr Tan Nguyen noted the claimant reported “back is better”.
On 28 March 2008, “back pain” noted by Dr Tan Nguyen.
On 23 April 2008, the patient reported persistent back pain.
On 1 August 2008 back pain reported.
On 16 February 2009 reported back getting worse.
On 16 January 2011, Dr Tan Nguyen noted the claimant reported with a two-week history of back pain. Denied any injury, worsening getting up, pain down the right knee. [15]
[15] Claimant’s bundle RA 15 p113.
On 10 February 2011, Dr Tan Nguyen noted CT showed osteophyte at L5/S1.
On 10 August 2011, Dr Tan Nguyen noted left-sided back pain down the left thigh to the knee for two weeks, paraesthesia and numbness.
On 6 September 2011, back getting worse.
On 19 September 2012, right shoulder, neck, hand pain radiating down right arm.
On 21 September 2012, Dr Khaled Etri noted imaging reviewed, C4/5 and C5/6 exit foramina narrowed.
On 4 April 2013, Dr Tan Nguyen noted back pain getting worse over the last few months.
On 24 May 2013, Dr Tan Nguyen noted back still sore, has MRI result. Patient saw his solicitor wanting it under WC, still working as a security.
On 9 April 2014, slipped while in shop yesterday, did not fall but had right lower back pain since. No radiation.
On 16 June 2015 saw Dr Daniel Guo complained of back pain and pins and needles in the legs.
On 16 June 2015 saw Dr Khaled Etri who noted results of MRI degenerative changes with stenosis. Recommended review by neurosurgeon.
On 5 March 2017 the claimant consulted Dr Tan Nguyen.[16] He reported back pain on and off for 3-4 weeks down the right leg. Dr Nguyen noted that a CT scan in 2013 had showed L5 nerve root impingement.
[16] Claimant’s bundle RA 15 p 86.
On 9 March 2017 the GP noted that the claimant reported severe right L5/S1 facet protrusion, likely causing nerve root impingement, previous R L5/S1 decompression in 2007.
On 16 May 2017 the claimant consulted Dr Tan Nguyen who complained that his back is sore. He had steroid injections which were not helping but had still not booked to see the specialist yet.
On 18 June 2020 consulted Dr Dr Ying Miin Law about longstanding low back pain and was referred to a chiropractor for treatment.
On 4 November 2020 consulted Dr Dr Ying Miin Law about neck pain with radiculopathy.

Post-accident treating records

There are medical records from Rooty Hill Medical and Dental Centre from about
[17] Claimant’s bundle RA 15 pp 61 – 63.
August 2004 to October 2021. These records show that Mr Pope made persistent and repeated complaints about ongoing leg and back pain. Between 2004 and 2021 the claimant had at least 24 consultations with his treating doctors with the reason for the visit recorded as “back pain”.[17]
The claimant attended Dr Ying Miin Law with his wife on the afternoon of the subject accident on 17 April 2021. Mr Pope told Dr Law that he was in a motor vehicle accident as a front passenger. After the accident he experienced neck pain, low back pain, numbness right heel, pain worse on movement, and right shoulder pain. On examination Dr Law found there was reduced C-spine movement in all directions, normal power. Diffuse lumbar spinal tenderness, tight muscles. Reduced flexion, normal power in his lower limbs.
The claimant consulted Dr Law again on 21 April 2021. He reported lumbar back pain which was still sore. Numbness L5/S1 distribution right leg, a bit weak right leg. Dr Law’s diagnosis was, “Strained neck muscles, Lumbar back pain ? nerve impingement”.
There is an AHRR 1 for physiotherapy from Dr Michelle Law dated 15 June 2021. [18] Dr Law’s diagnosis was:
“Karl's clinical pattern is not consistent with MRI findings of nerve impingement in L5 /S1. He is however in a lot of pain 2 months after the injury, has developed a large amount of muscle guarding and experiencing nerve like symptoms into his right leg.”
[18] Insurer’s bundle RA30 R6 at pp 23- 27.
In a second AHRR for physiotherapy from Dr Michelle Law dated 1 August 2021, Dr Law’s diagnosis was, “Karl's advised the neural symptoms in his(R) Iower limb have resolved throughout the last AHRR period.” [19]
[19] Insurer’s bundle RA30 pp 34- 35.
The claimant saw Dr Law again on 4 August 2021. The claimant reported that low back pain is better, occasional twinges, working office work, walking normally now.
The claimant saw Dr Law again on 23 August 2021. He reported that he was happy to start light duties, happy going to workplace, right shoulder being sore for a bit.
In a third AHRR for physiotherapy from Dr Michelle Law dated 26 August 2021, Dr Law’s diagnosis was, “Ongoing LBPW (R) L5S1 neural radiculopathy.” Dr Law noted that “Karl advised that the neural symptoms in his (R) lower limb are I/T, dependent on if his L/ spine is aggravated.”
The claimant saw Dr Law again on 18 September 2021. The claimant that his back flared up a bit.
In a medical report addressed to the insurer dated 22 September 2021 Dr Law wrote the following.[20] Dr Law provided a diagnosis of facet joint disease in the lumbar spine causing right S1 radiculopathy. He referred to a muscular component to the claimant’s back pain.
Dr Law wrote that the jolt from being rear-ended in the subject motor vehicle accident caused a back muscle strain and exacerbated the spinal issues that the claimant had reported in the past. Dr Law believed the main barrier was the claimant’s previous spinal issues. Dr Law noted the claimant had a right L5/S1 nerve root decompression in 2007.

Dr Robert Elliott - orthopaedic surgeon - treating records

[20] Claimant’s bundle RA 13 p 59.

There are seven reports from Dr Robert Elliott who is the orthopaedic surgeon that has treated Mr Pope over a number of years. [21]The date of the reports ranges from
[21] Insurer’s bundle of Dr Elliot records RA38 to RA 45.
20 August 2007 until 17 June 2013.
In a report dated 20 August 2007 Dr Elliott wrote that an MRI dated 16 August 2007 shows minor disc bulging at the L5-S1 level with enlargement of the facet joint at that level on the right side with possible nerve root entrapment from an osteophyte.
In a report dated 19 November 2007 Dr Elliott wrote that on 7 December 2007 he intended to proceed with right L5-S1 level nerve root decompression surgery.
In a report dated 21 June 2010 Dr Elliott wrote that the claimant had developed increasing back pain over the last three months. On examination his range of movement is about 80% of normal. Recent CT of the lumbar spine showed some minor disc bulging at L5-S1 and evidence of the previous surgery. There appears to be some degenerative changes in the right facet joint at the L5-S1.
In a report dated 17 August 2011 Dr Elliott wrote that the claimant reporting bending over at work on 2 July 2011 to turn off some switches and developed severe back pain following this procedure. The pain radiated in the right leg. Dr Elliott reviewed the CT scan of his lumbar spine taken on 12 August 2011. This showed the right L5-S1 exit foramen is very constricted and the nerve root is being compressed. There is perhaps a small disc bulge. There is also severe osteoarthritis affecting the right facet joint at this level.
In a report dated 17 June 2013 Dr Elliott wrote that the claimant reported severe back spasms two days ago. Dr Elliott reviewing the MRI of the claimant’s lumbar spine which was taken on 24 May 2013. This shows no disc prolapse but there is significant facet joint arthrosis at L5-S1 causing bilateral foraminal stenosis worse on the right than the left.

Dr Jacqueline McMasters- neurosurgeon- treating records

There are a number of reports from Dr Jacqueline McMasters who is the neurosurgeon that has treated and operated on Mr Pope over a number of years.
On 6 March 2018 Dr McMasters wrote a report which stated that:
“Mr Pope presented today with a CT scan from March 2017 which shows evidence of his previous right L5/S1 surgery and also demonstrates a severe right L5/S1 arthropathy with a right posterior disc protrusion. Impression Mr Pope’s symptoms would be consistent with an L5 radiculopathy. In discussion with Mr Pope, I have explained to him that there are degenerative changes throughout his lumbosacral spine potentially causing his pain.”
There is a report by Dr McMasters dated 15 September 2021.[22] She reported that she last saw him 2018 when she stated that he had right pain consistent with right L5 radiculopathy. He stated that he was travelling reasonably well until he was involved in a motor vehicle accident in March. Dr McMasters describes the motor vehicle accident. She recounts that the claimant told her he was a passenger in a stationary vehicle which was hit from behind by a car estimated to be travelling at approximately 80kmph. The claimant said he was wearing his seat belt but the airbags did not deploy. He was able to get out of the car on his own and didn't feel too bad initially but later the afternoon developed numbness travelling down his leg from the buttocks into his heel with some associated leg pain. Dr McMasters then states that these symptoms have been reasonably constant since the accident and that he walked with a limp mainly due to leg pain. When examined, she was aware that he had a right S1 radiculopathy due to the irritation of the S1 nerve root at the L5/S1 foramen on the right. She suggested a trial of cortisone injections at that stage.
[22] Claimant’s bundle RA 12 p 56 and pp 355 – 356.
In a report by Dr McMasters on 11 October 2021, she reports a steroid injection made no difference.[23] The claimant continues with physiotherapy. Dr McMasters expressed the view that surgical intervention was the only real option.
[23] Claimant’s bundle RA 12 p 58.
In a report by Dr McMasters dated 15 November 2021 she described review of his right leg pain and back pain and noted there was some dispute in relation to liability. She stated the conservative measures have failed and surgery was the only viable intervention.
A report from Westmead Hospital notes that Dr McMasters performed a right L5/S1 decompression on 18 July 2023.[24]
[24] Claimant’s bundle RA 21 p 350 - 351.
On 28 August 2023 Dr McMasters reported that the claimant consulted her:
“… for review following his recent lumbar spine surgery at Westmead Public Hospital which pleasingly has gone very well. He has had resolution of his leg pain and improvement in the sensory changes in his leg although that hasn’t completely resolved which is not uncommon. I have reassured him that it can sometimes take some time for the sensory changes and weakness to improve following nerve root compression. His wound has healed nicely and there is no evidence of redness or swelling at today’s consultation. He has been doing the exercises given to him by the physiotherapists and I have encouraged him to continue with that long-term in an attempt to try and slow down any deterioration in his lumbar spine that he might get. At this stage, I am very happy with his outcome following surgery, as is he. I haven’t made plans to see him again but would be happy to do so should that be necessary.”

Medicolegal reports

On 6 October 2022, Dr Drew Dixon, orthopaedic surgeon, provided a Medicolegal report.[25]
[25] Claimant’s bundle RA 17 p 327 - 332.
Dr Dixon first describes the history of the motor vehicle accident as provided by the claimant.
Dr Dixon record the claimant’s work history as follows:
“At the time of the subject motor vehicle accident he worked for Beaurepaires doing tyre pressure and tread maintenance. This involved going under trucks and testing the tyre pressure and inflating tyres if necessary. He had difficulty returning to work after the subject motor vehicle accident. He was at Beaurepaires for two years and was terminated one year after the accident and is not working at present. Prior to the above, he worked at the Gatehouse in Riverstone escorting trucks over the railway line and before that worked in corporate security for MSS Security for 7 years. He holds a security licence. He had worked for Woolworths in the past and in 2005 sustained a back strain injury while working there and in 2007 required a lumbo-sacral discectomy. After that he was able to return to the workforce. He had no sciatica and his back settled, and it was not until after the subject motor vehicle accident that he developed radicular complaint in the lower limb with sensory alteration and sciatica and further low back pain.”
When examined, the claimant described limitation of back movement. He stated that the right hamstring jerk was difficult to elicit and ankle jerks were present. He noted 1cm wasting of the right calf below the knee which was not present today and reduced dorsiflexion of the right great toe which was not present today with sensory alteration on the L5/S1 distribution down the lateral aspect of the leg to the right great toe. I noted an S1 distribution only. He supported further back surgery.
Dr Dixon summary of injuries and diagnoses was as follows:
“This claimant was a front seat passenger involved in a double of collision when the vehicle in which he was travelling had to stop suddenly and was rear ended by another vehicle and pushed into the car in front, and he sustained a low back strain injury. Although he had previously had surgery in 2007 for a lumbo-sacral disc lesion, he had no sciatica and no back pain and was working at the time of the accident but following the subject accident, has low back pain with L5/S1 radiculopathy not responding to conservative management.”

REVIEW OF THE RADIOLOGY

There are a number of X-rays, MRIs and CT scans reporting on the claimant’s spine.
There is a CT lumbar spine performed by Castlereagh Imaging on 29 August 2006, reported by Dr Michael Reeves. Conclusion:
“Small posterocentral disc protrusion L5/S1 with significant indentation of the thecal sac. Moderately severe degenerative change in the right L5/S1 posterior facet joint associated with moderate narrowing of the right L5 neural foramen.”
There is a CT lumbar spine performed by Castlereagh Imaging on 24 January 2011 by
Dr Victor Mansberg. There was an indication pain in the lower back and numbness of the right buttock area. Dr Mansberg noted mild L4/5 annular disc bulge and moderate L5/S1 disc bulge without significant central spinal canal stenosis. There was osteophytic encroachment from severe right L5/S1 facet joint arthritis changes upon the right neural exit foramen where there is a probable slight impingement upon the exiting right L5 nerve root.
There is a CT of the lumbar spine performed by Castlereagh Imaging on 12 August 2011 by Dr Andrew Li. Dr Li’s conclusion was right L5/S1 exit foramen is encroached by osteophytes due to osteoarthritic riders of the facet joint. The right L5 nerve within the right exit foramen appears to be impinged.
On 7 March 2017 there is a CT scan of the lumbosacral spine performed by Dr Patrick Mehr. Dr Mehr commented that there is a severe right L5/S1 facet arthropathy which together with the right posterior disc protrusion causing right L5 nerve root impingement.
On 19 March 2018 there is an MRI scan lumbosacral spine performed by Dr John Ly.[26] The conclusion of the scan was: Marked right-sided facet joint degenerative changes of L5/S1 level. Right sided foraminal stenosis with partial impingement of right LS nerve root. No impingement of the S1 nerve roots.
[26] Claimant’s bundle RA 16 p 291.
There is an MRI scan of the lumber spine performed on 12 May 2021 by Dr Matthew Lee. [27] The conclusion of this report is right L5/S1 facet joint OA with formal stenosis and impingement. Malalignment L3 /L4 and L4/ L5.

SUBMISSIONS

[27] Claimant’s bundle R10 p 53.

Claimant’s submissions

The claimant’s solicitors provided four sets of written submissions dated 25 and
[28] Claimant’s bundle RA 1, RA 3 and RA 24 at pp 1, 13 and 424.
29 November 2021, 17 November 2023 and recently 23 August 2024.[28]
In submissions dated 23 August 2024 the claimant’s solicitors wrote responding to the dash cam footage. The Panel has quoted the submissions because of the importance placed upon the issues by both parties:
“1. Claimant continues to rely upon the previous submissions dated 26 March 2024 and further provides photographs of the damaged vehicle involved in the subject accident.
2. The photographs of the vehicles show significant damage to the vehicles and the dash cam footage depicts a high-speed collision causing the Claimant to grunt in pain. The collision was so significant that it caused the claimant’s vehicle which was braking to collide with the vehicle in front. It is submitted that the force of the collision is sufficient to cause the claimant to suffer significant injuries and to cause the need for surgery.
3. With respect to the Defendant’s further submissions made on 23 August 2024, the Claimant makes further submissions in response to the insurer’s submissions of 23 August 2024 concerning the Dash-cam footage, the severity of the subject accident and the Claimant’s injuries. The relied upon dash-cam Footage shows the collision from the claimant’s motor vehicle however the claimant cannot be seen on the footage and is not seen in front or around the vehicles contrary to the insurer’s submission.
4. We include within this application a photograph of the Claimant for clarification.
5. The Claimant submits that the submissions regarding extricating the towbar and causation does not bear any relevance to the Claimant as the insurer is unfortunately misguided as the good Samaritan, they are referring to in the footage is not the Claimant.”
In the submissions dated 17 November 2023 the claimant submits that the back surgery treatment in dispute should be approved and funded by the insurer. The solicitors also contend that the Review Panel should find that the surgery is causally related to the accident and reasonable and necessary in the circumstances.
In the submissions dated 17 November 2023 the claimant submits that the claimant’s clinical notes clearly demonstrate that he had a history of back pain since 2004 and involved radicular complaints from his back into the right leg. In 2007, the claimant had back surgery which was a right sided L5/S1 nerve root decompression. The claimant had a CT scan to his back in 2013 which showed a L5 nerve root impingement. The claimant continued to make complaints about a sore back until 16 May 2017. After this, there were no further complaints to escalate the treatment of his back surgery. In June 2020, the claimant was admitted to hospital as a result of chest pain and reported that he had longstanding lower back pain and that he was intending to find a chiropractor.
The claimant was employed as a tyre fitter on a full-time basis from 27 May 2019 in the role of a “Pressure Maintainer”. He has not returned to his pre-injury work since the date of the accident. In a report from Dr Khan, he recommended that the claimant not return to his job. The claimant’s solicitor submitted that the evidence was that the claimant was performing fine at his employment and had been doing so for two years until the subject accident. As a result of the subject accident the claimant had sustained serious and substantial injuries which have put him out of manual work probably for the rest of his life and will likely cause him to retire early.
The claimant’s solicitors then detailed the claimant’s history of complaints to his treating GP about his back pain and leg numbness as recorded from 17 April 2021 until
18 September 2021.
Prior to the subject accident in 2021 the claimant did not have back surgery when he was initially referred in 2017. He has been through this type of procedure in 2007 and clearly understands the seriousness of back surgery.
The claimant’s solicitors submit that since the insurer’s denial of surgery, the claimant had been waiting for the outcome of this treatment dispute which has been on foot since
4 November 2021. On 18 July 2023 he had surgery to the right L5/S1 decompression performed by Dr McMaster at Westmead Hospital. The treatment in dispute should be approved and funded by the insurer.
The claimant’s “second submission” dated 29 November 2021 write that Medical Assessor Truskett has on pages 2 and 9 written that the subject treatment in question is not reasonable and necessary in the circumstances. However, on page 9 he also writes, “It would be appropriate that he undergo decompression of this nerve root at the foramen which would likely impact on his right leg symptoms. This will therefore be considered reasonable and necessary but is not caused by the motor vehicle accident.” Therefore, the Medical Assessor has made an admission that the subject treatment is reasonable and necessary in the circumstances however has provided a contradicting determination. This is either an obvious error or an error of logical reasoning which would render it an erroneous finding.
The claimant’s solicitors argue that the Medical Assessor’s causation finding in summary is that the claimant had a pre-existing back injury that was aggravated by the motor vehicle accident which resolved shortly after the accident and any subsequent deterioration is due to the claimant’s pre-existing condition and unrelated to the subject accident (page 9). The claimant submits the Medical Assessor has erred on this point for the following reasons.
The solicitors contend that the Medical Assessor misapplied the test for causation in determining whether the treatment is related to the injury caused by the accident and in a similar vein failing to have regard to the Guidelines and applying the relevant principles for causation, Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 324, AAI Limited v Phillips [2018] 2 3 NSWSC 1710 [29], and State Government Insurance Commission v Oakley (1990) 10 MVR 570.
The solicitors also argue that the Medical Assessor failed to show his path of reasoning in as to whether the requirement for back surgery is due to the claimant’s pre-existing condition and inevitable because of that pre-existing condition.
The claimant’s solicitors submit that the causation question is whether the specified treatment “relates to the injury caused by the motor accident.” The solicitors refer to the decision in State Government Insurance Commission v Oakley (1990) 10 MVR 570, Malcolm CJ identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury.
Medical Assessor Truskett referred to a clinical note on 4 August 2021, which described that the claimant’s back pain was now better and he was walking normally. This would suggest to Medical Assessor Truskett that following three months that the aggravation to his pre-existing condition then resolved. The claimant returned on 18 September 2021 with a further flare-up. Medical Assessor Truskett then wrote that was his view that this flare up is the manifestation of progression of his pre-existing condition and not the consequence of the aggravation occurred in the motor vehicle accident on 14 April 2021. From radiological imaging it is clear that this foraminal stenosis has been present for many years.
The claimant’s solicitors respond to this reasoning from Medical Assessor Truskett that his error was he had dismissed the causal link between treatment sought after 4 August 2021 and the subject accident due to an overreliance on a clinical note entry. The entry does not state that the claimant has completely recovered and that he no longer needed treatment in respect of the accident, but that his back pain was improving and that he was walking normally.
The claimant’s solicitors argue that it is reasonable to apply the first category identified by Malcolm CJ in the decision in State Government Insurance Commission v Oakley.
The claimant’s solicitors submit that while the Medical Assessor has considered in detail the claimant’s past history by way of reference to the clinical notes and scans on page 6, 7 and 8, the Medical Assessor has admitted that the latest complaint of back pain and right sciatic radiation was documented in March 2017. That is over four years before the date of the subject accident. The solicitors argue that an assessment of causation requires the Medical Assessor to consider the claimant’s pre-accident condition and symptomatology in comparison to their post-accident history. It is a relevant consideration in determining whether the accident has materially contributed to condition in question. Given that the subject injury falls into the first Oakley category, that is, the claimant had a pre-existing condition that was aggravated (and probably would not have been aggravated but for the pre-existing condition), then a causal link must be found. The solicitors submit that the Medical Assessor in that regard has misapplied the test for causation and incorrectly concluded that the subject condition is not related to the condition caused by the accident.
The claimant’s solicitors submit that if the Medical Assessor’s view is that the claimant’s surgery is reasonable and necessary in the circumstances but not related to the accident, then the Medical Assessor has failed to give reasons in respect of whether that need for surgery is solely due to the pre-existing back condition and also erred in failing to adequately consider the material. It has been accepted at common law that if a claimant’s pre-existing condition placed the claimant in a position where surgery was inevitable, but the accident has accelerated that timeframe forward, then the surgery should be accepted as being causally related to the accident. Such a finding is consistent with the Court of Appeal’s approach in McKenzie v Wood [2015] NSWCA 142 where the Court accepted that a hip operation which was inevitable but had become urgent was a recoverable expense. That principle was reiterated in Venizelou v AAI Ltd [2021] NSWPICMP 215 [123]-[132].
The claimant’s solicitors further argue that in the circumstances, the Medical Assessor was required to provide adequate reasoning to demonstrate that he has taken into account the full clinical picture of the claimant’s condition. In other words, a discussion was required as to whether the subject back surgery was causally related to the accident, in circumstances where the claimant previously had back surgery. According to the claimant’s solicitors this requires the Medical Assessor to capture both the pre- and post-accident picture of the claimant’s condition and make an informed judgment based on the nature of deteriorating and aggravated injuries. In order to do so, the Medical Assessor was required to consider how the claimant was able to avoid having a back surgery procedure for over three years until the subject motor vehicle accident occurred in 2021. Unfortunately, this was not put to the claimant. There was no question as to why the claimant was not recommended nor opted to go for surgery prior to his subject accident.
The claimant’s solicitors further argue that these reported symptoms are much more severe than the symptoms reported by the claimant prior to the accident and claimant’s solicitors respectfully question how the Medical Assessor arrived at his conclusion that the accident has not contributed to these symptoms.
The claimant’s solicitors then refer to the reports of Dr Dixon who writes in part that:
“He does have arthritis in the right L5/S1 facet joint which remains symptomatic. 7 8 He suffers from a non-minor injury as he has L5/S1 radiculopathy following his back strain injury. He has aggravated lumbo-sacral foraminal stenosis which is impinging on the right L5 nerve root and this aggravation is ongoing and is a result of subject accident.”
The claimant’s solicitors conclude that for the reasons discussed above, the Medical Assessor has failed to engage with the correct principles of causation and in doing so prevented himself from being able to properly discharge his duties as the Medical Assessor.
The claimant’s solicitors then move on to their submissions about the treatment and care dispute.
The claimant’s solicitors submit that, as foreshadowed above, it is unclear whether the Medical Assessor has committed an obvious error or has contradicted his determination with his reasoning which would be an error at law on the face of the record. It is submitted that the Medial Assessor ought to have found that the surgery is reasonable and necessary for the reasons that were laid out by the Medical Assessor at page 9 of his reasons.
The claimant’s solicitors refer to 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 specialist medical evidence is unanimous that the claimant now requires the subject back surgery. Conservative treatment following the subject accident had been trialled and failed. The claimant attempted other forms of treatment which were not successful, including cortisone injections. The proposed surgical procedure is appropriate and was the type of treatment that is expected to significantly reduce back symptoms and pain following the operation and is likely to be effective.
As noted by Dr Dixon, on page 5 of his report the claimant, “… has not been able to tolerate anti inflammatories due to his anti-epileptic medication and clinically has not improved with sustained conservative management including two cortisone injections…”
The claimant’s “first submission” dated 25 November 2021 refer to the proposed right L5/S1 decompression surgery proposed by Dr Jacqueline McMaster on 11 October 2021 and declined by the insurer on 21 October 2021.
The claimant also provides additional material not originally included in the application being a report from Dr Jacqueline McMaster dated 15 November 2021.
The claimant’s solicitors acknowledge that they are required to prove that the right L5/S1 decompression surgery is reasonable and necessary and causally related to the subject motor vehicle accident.
The claimant’s solicitors note that 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 claimant’s solicitors refer to the specialist medical evidence provided by Dr McMaster expresses that the claimant requires a right L5/S1 decompression surgery. The contrary denial by the insurer of the back surgery because it considered there to be insufficient medical evidence to suggest the treatment is reasonable and necessary at this stage does not accord with the distinct issue of whether the treatment is actually reasonable and necessary.
The claimant’s solicitors are highly critical of the approach adopted by the insurer which they say shows an unwillingness to investigate the claimant’s need for treatment and goes against the objects of the MAI Act. The insurer did not specify if the insufficiency of evidence was due to a lack of contemporaneous evidence or whether there existed evidence which showed otherwise. It simply stated “insufficient medical evidence” which is not representative of any engagement on the issue of whether a treatment is reasonable and necessary.
The claimant’s solicitors highlight the reports of Dr McMaster’s that the claimant was asymptomatic prior to the motor vehicle accident. This distinct issue was briefly mentioned by the insurer but was not determinative in its consideration as to whether the surgery was reasonable and necessary and is evidenced by its lack of engagement on the matter. The claimant’s solicitors note that conservative treatment following the motor accident had been trialled and failed. The claimant has attempted other forms of treatment which were not successful, including two cortisone injections. On 15 November 2021 Dr McMaster noted that the claimant “has tried conservative measures and hasn’t really been successful in terms of managing his right leg pain and therefore surgical intervention really is the only other option for him.”
The claimant’s solicitors submit that 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. These principles are well settled and equally apply by reasons of the words used in the treatment issue.
The claimant’s solicitors submit that the motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips. 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 MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act. The test set out in cls 6.6 and 6.7 of the Guidelines do not directly apply to treatment and are used for permanent impairment assessments, however cl 6.7 refers to “the accepted approach [which] involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident”. This is consistent with the decisions referred to above.
The claimant’s solicitors point to and rely on the abundance of medical evidence served which shows the pre and post-accident symptomatology of his back and the marked difference, being that the claimant presented as asymptomatic prior to the subject accident. That is not to say causation is determinative on complaints recorded, but rather, it is clear that the motor vehicle accident has materially contributed to the claimant’s back symptoms. It is clear from Dr McMaster’s account that the claimant’s back pain developed following the subject motor vehicle accident. The clinical notes from Rooty Hill Medical and Dental Centre show that the claimant complained about back pain on the same day of the motor vehicle accident on 17 April 2021.

Insurer’s submissions

The insurer has provided three sets of written submissions dated 23 August 2024,
[29] Insurer’s bundle RA 25 pp 1- 3 and RA 26 p 4-7.
16 January 2023 and 8 December 2021. [29]
In submissions dated 23 August 2024 the claimant’s solicitors wrote making late submissions about dash cam footage about the subject accident. The Panel has quoted the submissions because of the importance placed upon the issues by both parties:
“Background 1. The claimant has provided dash-cam footage to the Review Panel which was not previously provided to the Commission nor viewed by the insurer.
2. The insurer requests that these submissions be provided to the Review Panel in accordance with procedural fairness, being the right of the Insurer to respond to evidence adduced by the Claimant.
Causation
3. The dash-cam footage demonstrates that the Claimant, who was seated in the front passenger seat of the vehicle carrying the dash-cam, left his vehicle and assisted with detaching his vehicle from the towbar of the vehicle in front.
4. The video shows that less than 1 minute after the accident the claimant made at least three attempts to separate the two vehicles. He exerted himself forcefully while he attempted to move the vehicles. He bent, twisted, and lifted using his torso. There were no signs of symptoms or discomfort.
5. The claimant appears unaffected by the activity, which undoubtedly applied exertion to his back.
6. The claimant told Assessor Truskett and Dr Dixon that he was able to self-extricate from the vehicle, however he has never reported that he assisted to physically detach the two vehicles.
7. It is highly implausible that the claimant could have assisted with raising his vehicle had he suffered an acute injury that materially impacted his pre-existing back condition.
8. Furthermore, the video footage demonstrates that the rear-end collision caused by the insured vehicle was relatively low impact. The subsequent collision with the vehicle in front was exceptionally low impact.
9. There is obvious damage to the insured vehicle. However, analysis of damage to the insured vehicle does not fall within the expertise of medical Assessors. It is not possible to draw a direct nexus between the deformation to a plastic bumper and bonnet and an injury sustained by the claimant while he was positioned in a different, much larger vehicle, protected by a towbar. The fact is, the damage to the claimant’s vehicle was not substantial, and that is the key evidence.
10. The photographs and video allow a conclusion that the accident did not materially affect the trajectory of the pre-existing back injury and requirement for surgery.
11. While attempting to detach the vehicles the Claimant bent his spine and exerted himself forcefully.
12. This leaves a possibility that if the Claimant sustained injury around the time of the accident, it was a result of attempting to detach the vehicles.
13. Attempts to detach the vehicles do not fall within the definition of a motor accident in section 1.9 of the Act.”

In the submissions dated 16 January 2023 the insurer’s solicitors submitted in regard to the issue of causation that:
“12. A Medical Assessor is tasked with determining whether a referred injury was caused or materially contributed to by the subject motor accident.
13. The Assessor must consider the medical evidence, the history that is taken at the assessment and his/her findings on examination, in order to provide a reasonable and justified position on whether or not an injury has been caused by or contributed to by the subject accident.
14. Assessor Truskett considered the evidence, took a history and performed a comprehensive examination and applied due consideration to whether the mechanism of the accident caused the need for surgery. He provided a clear explanation for his conclusions.
15. These elements of the Assessor’s determination are evidence as follows:
a. Assessor Truskett noted a clinical history of back pain and injury in 2007 which necessitated an L5/S1 discectomy.
b. The Assessor identified recurrent episodes of back pain and complaints of back pain and right sciatic radiation in 2015 and 2017.
c. Assessor Truskett noted imaging evidence of pre-existing stenosis at the right L5/S1 foramen, causing S1 nerve root compression that was present for many years.
16. Assessor Truskett applied this evidence and concluded that the accident caused an aggravation of symptoms, however that aggravation was self-limiting in course and had ceased. All continuing symptoms (and accordingly the need for surgery) were consequences of the preexisting condition that was identified via the history and records, and not a continuation of the effects of the subject accident. That is, the accident did not cause or contribute to the continuing symptoms.
17. Assessor Truskett did not exercise ‘mere speculation’. Rather, he took a detailed history and relied on that history when reaching his conclusion and when explaining that conclusion. He provided a clear opinion that was based on his examination and on the entirety of the medical evidence that was before him.”
In the submissions dated 16 January 2023 the insurer’s solicitors submitted in regard to the issue of reasonable and necessary treatment that:
“ … the Claimant’s asserted that Assessor Truskett accepted that the subject treatment is reasonable and necessary, however then provided a contradictory determination.”
The insurer’s solicitors further submitted:
“20. The allegation of error relies on a mis-interpretation and/or misunderstanding of the nature of the Assessor’s determination and the content of the report.
21. It is evident that Assessor Truskett considered all necessary elements of the history, clinical examination, and medical evidence when assessing the alleged injuries and need for surgery.
22. Assessor Truskett determined that it would be appropriate for the Claimant undergo surgical decompression of his nerve root, however he also concluded that the need for the procedure is not a consequence of the subject accident.
23. The Claimant has misinterpreted this determination and reasoning. Assessor Truskett stated that the surgery would likely be relevant to treatment of the claimant’s right leg symptoms. However, Assessor Truskett also concluded that accident-related aggravation of symptoms had ceased, and all continuing symptoms were consequences of the pre-existing condition, and not a continuation of the effect of the subject accident.
24. Accordingly, the Assessor accepted that the surgery was appropriate, but also concluded that the need was not related to the accident. At no time did the Assessor conclude or state that the surgery was a reasonable a necessary consequence of the subject motor accident.
25. Contrary to the claimant’s submissions, there is no contradiction in the assessment.”
In the insurer’s submissions dated 8 December 2021 the insurer refers to clinical notes provided by the claimant’s longstanding pre-accident GP, and highlights the following clinical entries in support of a chronic pre-existing history of lumbar spine injury since 2004. On
9 March 2017 – severe Right L5/S1 facet joint arthropathy with right L5/S1 post disc protrusion, likely causing nerve root impingement. Previous right L5/S1 decompression in 2007. Pain radiating down back of right leg into sole of right foot. 5 March 2017 – On and off Back pain for 3-4 weeks, down the Right Leg. 16 June 2015 – back pain. No new injury. Legs pins and needles. 9 April 2014 - right lower back pain.
The insurer then notes that the claimant was involved in a motor vehicle accident on
17 April 2021 where the claimant did not require treatment at the scene by ambulance officers nor treatment at a hospital.
The insurer submits that the lack of ambulance/hospital involvement attests to the minor nature of the claimant’s alleged injuries.
The insurer further notes the claimant’s GP provided a diagnosis of lumbar back pain with possible nerve impingement. The claimant underwent an MRI scan of the lumbar spine on
12 May 2021 which concluded right L5/S1 facet joint osteoarthritis with foraminal stenosis and impingement and malalignment at L3/4 and L4/5. In June 2021, the claimant’s physiotherapist reported that the claimant’s “clinical pattern is not consistent with MRI findings of nerve impingement in L5/S1” rather intermittent “muscle guarding and experiencing nerve like symptoms into his right leg”. In September 2021, the claimant’s neurosurgeon reported symptoms consistent with a right S1 radiculopathy, “likely related to S1 nerve root irritation within the exit foramen at the L5/S1 level” and recommended a period of conservative treatment.
The insurer’s submissions then highlights that the claimant’s neurosurgeon, Dr Jacqueline McMaster, (in both September and November 2021) did not report any objective neurological symptoms/signs or conduct any tests to confirm the presence any verifiable neurological symptoms pertaining to a specific spinal nerve root distribution per the criteria set out in Part 5.8 of the Motor Accident Guidelines.
Therefore, the insurer concludes that the claimant does not clinically have radiculopathy, decompression surgery to the lumbosacral spine is not reasonable and necessary. When comparing radiological imaging undertaken before and after the subject motor vehicle accident, the insurer submits that the findings are near identical, with no evidence of any significant acute injury causally related to the subject motor vehicle accident.
The insurer then acknowledges that chronic pre-existing degenerative pathology of the lumbar spine may have been temporarily aggravated by the subject motor vehicle accident, however, there have been no verifiable neurological symptoms reported for which right L5/S1 decompression surgery may be required.

MEDICAL EXAMINATION

Details of who attended the assessment

Mr Pope attended for Medical Panel re-examination on 12:00pm- 1:30 pm Tuesday,
2 July 2024 with Medical Assessors Rhys Gray and Michael Couch at the Commission’s Medical Suites as arranged.
Noted that the clinical notes of Dr Elliott, orthopaedic surgeon were supplied.

History

Mr Pope is now 60 and not working, stating he had the subject motor accident on
20 April 2020.
He was born in New Zealand, came to Australia in 1972 and left school at the age of 15. He then spent some years in various factory labouring jobs about Sydney. He obtained a security licence and worked as a hospital wardsman for about 17 years.
In 2007 he started work as a ‘picker and packer’ on the conveyor belt with Woolworths at Minchinbury and after a work injury did not return to that job.
He said in 2008 he obtained a security licence, mostly corporate security with CTB for about seven years and later at Riverstone Park Gatehouse.
From 2017 until the subject motor accident he was working for Goodyear Tyres, mostly checking pressures and treads, with no requirement for tyre changing or other heavy physical work activity.
Mr Pope said that he had not returned to work since the subject motor accident.

General health

Mr Pope has been treated for hypertension over two to three years. He said he had had depression in the past and had taken some time off work, now stable while taking duloxetine 30mg daily.
He had surgery for a pyloric stenosis at six weeks of age; an appendicectomy at the age of 13; PIP fusions right and left feet in 1987; a right inguinal hernia about 25 years ago plus a ‘double hernia’; gastroscopy and colonoscopy in 2024.
Surgery for the low back in 2007 and more recent surgery for the low back in 2023.
He described having epilepsy starting in 2005 with major fits, but with no major fit over the last five years on medication.
Current medications include Neurontin, Tegretol and Panadol. On questioning about the requirement for Neurontin, Mr Pope said that this was used by his treating doctor, as an adjunct on top of the Tegretol, to help control convulsions and also doubling as pain management.
Regarding workers compensation, he had made a claim for the low back in 2007. He was also questioned about the episode of low back pain in 2017, saying he did not make a claim at that stage.
Regarding motor accidents, he said there was the subject motor accident, but also a more recent accident two weeks ago. He said he was the driver of a CX-5 when rear-ended by a four-wheel drive while stationary on the Cumberland Highway off ramp on the M4 Motorway; his wife was in the front seat.
Mr Pope described it as a, “nudge” from behind. He said there was quite considerable damage to the tailgate requiring his vehicle to be written off, with his vehicle being towed because of the tailgate damage. He was questioned directly on any injury from this motor accident – Mr Pope said there was no injury and, “no new pain”. He said after this accident, he continued to have his usual day to day pain in the low back. He said his wife had a bang to the knee but she is now satisfactory.
He said he attended Dr Law a few days later and he was advised it was, “nil new”. Neither the police nor ambulance attended.
Mr Pope drinks alcohol rarely but smokes about 20 cigarettes per day.
In terms of sport and recreation, he said he does no regular physical activity but does attend a Men’s Shed and finds this helpful.

Social history

Mr Pope is married and lives with his wife in their own home with one stepson. He has two adult independent children and one other stepchild who is independent.

Medications

He reported his current medications as:
·        Tegretol 400 mg bd;
·        Neurontin 300 mg bd;
·        Duloxetine 30 mg one daily;
·        Lipitor 20 mg daily;
·        Aspirin daily, and
·        Atacand 16 mg daily.
He takes an occasional Panadeine forte, saying this doesn’t help back but does help him go off to sleep, with 20 tablets lasting several weeks.

History of motor accident

Mr Pope said that he was a front seat passenger, with his son-in-law driving, in a Ford Ranger that was stationary on Richmond Road. The traffic had stopped and therefore they had stopped, when and he heard a, “beep, beep, beep” from behind - he said a Toyota Camry hit their vehicle from behind. The vehicle he was in was a Ford Ranger without a towbar. He was wearing a seatbelt and no airbags deployed. He said the force of the collision pushed his vehicle into the car in front. With the accident he said he could not recall his body colliding with any internal aspect of the vehicle. He was able to, “hop out” while his son-in-law spoke to the other driver.
His vehicle was driveable and apparently it was his grandson’s ‘naming day’ at Windsor. He said that while sitting down for that function he developed pain in the low back which went into his right leg. He found that he could not walk far. He described the pain coming on, “after the adrenaline settled down”.
Mr Pope was questioned on his symptom pattern before the accident; he said he had on and off back pain, mostly nothing severe and was still able to walk and work, saying he was capable of functioning pretty well, and stating there was quite a change between before and after the subject motor accident.
He was asked why he had not returned to work and he said he was unsure why specifically. He said he was able to walk at that stage and after the accident could walk for 15 to 20 minutes without sitting down, but mostly he was, “moping around home”.
He was directly questioned about improvement after the motor accident. He was advised specifically that there had been comment in his general practitioner’s notes that there had been some improvement in about August 2021 and Mr Pope acknowledged this. He said there was a period when there was, “slight relief” but then said he could function and walk normally for a while and on one occasion this was up to one month. He described self-restriction on lifting and noted that he had exacerbations on getting out of chairs, particularly the wrong way, that might set his symptoms off.
However, Mr Pope said he was not sure of the mechanism of recurrence of symptoms.
The distribution of pain after the motor accident was from the low back to the right side, extending into the right buttock region and also the onset into the outer right thigh.
He said that after August 2021 there was right hip and low back pain and he had re-attended Dr McMaster, neurosurgeon. He acknowledged that he had attended her beforehand but said this was just for, “nerve pain” and he could not recall the details. Mr Pope was reminded that he had an MRI exam and bone scan at that stage; he said he was unsure of the details but did recall a nerve block about this time with some short-term help.
In 2022, pre‑operatively, he had low back pain with some paraesthesia extending to the right leg with pinching in the low back and occasional giving way of the right lower limb with symptoms extending below the knee.
After the back operation, he had some relief but said he was still unable to walk properly, saying the operation in 2023 helped the right leg more than the low back.
He continues to have physiotherapy once a week for an hour and hydrotherapy for a half-an-hour weekly. He said the hydrotherapy helps and he feels better in the pool but once he is out, he has a recurrence of symptoms.
Mr Pope said that he had had a final review by Dr McMaster who advised there was nothing further from her aspect, recalling no further consultation with her after four weeks’ post‑operation.

Current symptoms

At present he has low back pain which comes on more markedly after sitting for a short period. He said that the pain grips him and that walking is a, “mongrel” particularly after about 200m. Essentially, he described low back pain to the right side without paraesthesia since the second surgery. He said the pain radiates to the right buttock region and to the outer right thigh but not further distally. His sleep has some interruption from low back pain. He regularly attends Dr Law, his general practitioner.

Examination

On examination, Mr Pope was cooperative. He walked with a subtle limp. He weighed
104kg and was 178 cm in height (BMI equals 32.8).
There was an old surgical scar over the anterior aspect of the left shoulder that he said was from a work injury at the hospital in 2004 requiring a rotator cuff operation with a good outcome.
In the lumbar spine, there was a longitudinal midline surgical scar measuring 8cm that was non-adherent, well‑healed and non tender.
Lumbar movements were symmetrical but restricted with extension being more painful than flexion. On palpation there was specific tenderness over the lower lumbar paravertebral musculature to the right of L5, without spasm or guarding.
Both hips had the equivalent range of movements and were non-irritable.
There was limitation of straight leg raising to about 45 degrees bilaterally with complaint of low back pain but no radicular symptoms.
Lower limb sensation was within normal limits. There was no motor weakness. He was able to weight bear on his toes and his heels without difficulty.
Lower limb reflexes were brisk and symmetrical.
The circumference of both thighs measured equal at 51cm, and the maximum circumference of the right calf was 41cm and the left calf was 41.5cm.

Comments on consistency

At the re-examination Mr Pope presented in a straightforward consistent manner.
The only concern the Medical Assessors on the Panel had was Mr Pope’s description of the two motor accidents. The Panel notes he described a number of times to a number of doctors including Dr McMasters and Medical Assessor Truskett that in the subject motor accident the following car hit his Ford Ranger at speeds estimated to be between 60 to 80kmph . The Panel also notes that Mr Pope reported that the Ford Ranger was drivable and repaired at the cost of $8,000 and the other vehicle, a Toyota Camry, was written off. The Panel notes that it has examined the photographs of the two vehicles provided by the parties and the damage does not appear to be consistent with a high-speed collision estimated at between 60 to 80kmph.
The Panel also notes that during the re-examination Mr Pope told the doctors that he was involved in a second subsequent motor accident in June 2024 when he was driving a Mazda CX-5 which was written off as a result of that collision. The Panel notes that Mr Pope denied any new or further injury from that second accident.
Based upon Mr Pope’s detailed accounts and the Panels questioning at the re-examination it seems that the first subject motor accident was less severe than the second motor accident.
The Panel notes that there is no expert report about either motor vehicle accident nor is there any expert report about the mechanism on how the injuries were sustained as a result of the motor accidents. The Panel itself does not take any view nor express any opinion about the mechanism of Mr Pope's injuries and how they were incurred during either motor accident.

Summary of relevant radiological and medical imaging under investigation

No radiological investigations were brought to the re-examination.

DIAGNOSIS, CAUSATION AND CONSIDERATION

The Panel’s conclusion is that the subject accident did not cause or materially contribute or cause a material aggravation to the claimant’s longstanding pre-existing degenerative change and nerve root compression at the L5/S1 level. Any exacerbation of lumbar symptoms post the motor accident appears to have essentially resolved by August 2021. The claimant’s requirement for surgery was not accelerated by the subject accident. The subject accident did not cause, or materially contribute to the claimant’s nerve root compression at the L5/S1 nor the need for the requested treatment of right L5/S1 decompression surgery.
From 2004 onwards there are detailed medical records available from Rooty Hill Medical and Dental Centre which show that Mr Pope made persistent and repeated complaints about ongoing right leg and low back pain.[30] On 7 December 2007 the claimant had a right L5/S1 nerve root decompression in 2007 performed by Dr Elliot.
[30] Claimant’s bundle RA 15 pp 61 – 255.
Both before and after the subject accident the claimant reported suffering chronic and long terms problems and symptoms at right L5/S1 level in his spine and pain radiating down his right leg. In a report dated 20 August 2007 Dr Elliott wrote that an MRI dated 16 August 2007 shows minor disc bulging at the L5-S1 level with enlargement of the facet joint at that level on the right side with possible nerve root entrapment from an osteophyte. On 6 March 2018 Dr McMasters wrote a report which stated that:
“Mr Pope presented today with a CT scan from March 2017 which shows evidence of his previous right L5/S1 surgery and also demonstrates a severe right L5/S1 arthropathy with a right posterior disc protrusion. Impression Mr Pope’s symptoms would be consistent with an L5 radiculopathy. In discussion with Mr Pope, I have explained to him that there are degenerative changes throughout his lumbosacral spine potentially causing his pain.”

The Panel’s medical experience indicates that the usual course of degenerative long standing lumbar conditions is that they 'wax & wane’ or get worse or resolve. Patients have periods of time where they report episodes of disability and symptoms and other times when they experience fewer symptoms. In Mr Pope’s case his medical history shows he reported frequent periods of pain and symptoms and also periods without pain and symptoms. After his initial operation he had periods where he was pain and symptom free and then from about 2008 his pain and symptoms returned. On 18 June 2020 he consulted Dr Law about longstanding low back pain and was referred to a chiropractor for treatment. On
4 November 2020 he again consulted Dr Law about neck pain with radiculopathy. On
15 June 2021 Dr Law wrote in an AHRR that: “Karl's clinical pattern is not consistent with MRI findings of nerve impingement in L5 /S1. He is however in a lot of pain 2 months after the injury, has developed a large amount of muscle guarding and experiencing nerve like symptoms into his right leg.” On 1 August 2021 Dr Law wrote that: “Karl's advised the neural symptoms in his(R) Iower limb have resolved throughout the last AHRR period.” The claimant saw Dr Law again on 4 August 2021. The claimant reported that low back pain was better, occasional twinges, working office work, walking normally now. The claimant saw
Dr Law again on 23 August 2021. He reported that he was happy to start light duties, happy going to workplace, right shoulder being sore for a bit. Then in subsequent consultations with Dr Law the claimant reported a return of back pain. In the Panel’s clinical medical experience this patten of deterioration and improvement in symptoms is typical of degenerative spinal disease and supports the Panel’s findings that the claimant’s spinal pathology pre-existed the subject motor vehicle accident and was degenerative in nature.
From 2007 onwards the claimant had a number of CT and MRI scans. These scans consistently showed before and after the subject accident right-sided facet joint degenerative changes of L5/S1 level. Right sided foraminal stenosis with osteoarthritis and partial impingement of right LS nerve root. The claimant also had a number of guided cortisone injections before the motor accident to attempt to treat his pain and impairment.
Regarding the issue of causation, the Panel notes the Guidelines which provides in cl 6.7 that 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.
In their submissions the claimant’s solicitors make a number of detailed submissions about causation and refer to a number of court decisions to support their arguments. They refer to the decision in State Government Insurance Commission v Oakley (1990) 10 MVR 570, where Malcolm CJ identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury. The claimant’s solicitors argue that an assessment of causation requires a consideration of the claimant’s pre-accident condition and symptomatology in comparison to their post-accident history. It is a relevant consideration in determining whether the accident has materially contributed to condition in question. They argue that given that the subject injury falls into the first Oakley category, that is, the claimant had a pre-existing condition that was aggravated (and probably would not have been aggravated but for the pre-existing condition), then a causal link must be found.
The Panel has carefully considered all the detailed submission provided by both parties and the cases referred to by the parties regarding the issue of causation. The Panel notes, but does not accept, the argument raised by the claimant’s solicitors that the subject injury falls into the first Oakley category. In the Panel’s view an assessment of the claimant’s pre-accident condition and symptomatology in comparison to his post-accident condition shows little difference. Both before and after the subject accident the claimant reported ongoing back pain and symptoms of radiation down his right leg. Both before and after the subject accident the claimant’s CT and MRI scans showed right-sided facet joint degenerative changes of L5/S1 level. Right sided foraminal stenosis with osteoarthritis and partial impingement of right LS nerve root. The Panel’s view and clinical judgment is that the claimant’s pre-existing spinal condition was not aggravated by the subject accident, and there is no causal link between the subject accident and any injury experienced by the claimant. The claimant’s spinal pathology pre-existed the subject motor vehicle accident and was degenerative in nature.

TREATMENT DISPUTE

The claimant had a pre-existing condition of the lumbar spine which was evident from about 2004. As detailed above, both before and after the subject accident, the claimant reported suffering chronic and long term problems and symptoms at right L5/S1 level in his spine and pain radiating down his right leg.
The Panel’s view and clinical judgment is that the claimant’s pre-existing spinal condition was not aggravated by the subject accident and there no causal link between the subject accident and any injury experienced by the claimant. The claimant’s spinal pathology pre-existed the subject motor vehicle accident and was degenerative in nature.
In the Panel’s view the subject accident, did not bring forward or cause Mr Pope to require his lumbar spine surgery at the time he did. Therefore the subject accident can be ruled out as a cause more than negligible resulting in the need for surgery because of aggravation of a known prior condition which was less symptomatic and had a different symptom distribution before the subject accident.

Proposed treatment and care

The Panel’s conclusion is that the requested treatment of right L5/S1 nerve root decompression surgery as proposed and performed by Dr McMasters on 18 July 2023 is reasonable and necessary in the circumstances of the claimant’s case but not does relate to the injury caused by the motor accident.
In this claimant’s case, the Panel is not satisfied that the proposed treatment and care relates to the injury caused by the motor accident. As discussed in the paragraphs above.

Reasonable and necessary in the circumstances

In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[31] Grove J stated:[32]
“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.”
[31] [2003] NSWCA 52 (Clampett).
[32] 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.[33]
[33] 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.[34] 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.
[34] 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”.

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.[35] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[35] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[36] 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 MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[36] [2018] NSWSC 1710 at [29] (Phillips).
The Panel finds the injury to the claimant’s lumbar spine was not caused by the motor accident including whether by way of aggravation of pathology or exacerbation of symptoms. Accordingly, the Panel finds that the treatment does not relate to the injury caused by the motor accident. Given the claimant’s symptoms, the requested treatment is reasonable and necessary in the circumstances. The Panel finds it was medically appropriate for the claimant to have the surgical decompression of his nerve root, however the need for the procedure was not a consequence of the subject motor accident.

CONCLUSION AND CERTIFICATION

For the above reasons the Panel revokes the certificate issued by Medical Assessor Truskett.
The Panel finds that the injuries to Mr Pope’s spine at the L5/S1 level are pre-existing injuries not caused by the motor accident . The claimant’s spinal pathology pre-existed the subject motor vehicle accident and was degenerative in nature. The Panel’s conclusion is that the subject accident did not cause or materially contribute or cause a material aggravation to the claimant’s pre-existing nerve root compression at the L5/S1 level. The claimant’s requirement for surgery was not accelerated by the subject accident.
The proposed treatment and care does not relate to the injury caused by the subject motor accident and is reasonable and necessary in the circumstances.
The new certificate is attached at the commencement of these reasons.

[2024] NSWPICMP 614

30 August 2024