QBE Insurance (Australia) Limited v Chilukuri
[2024] NSWPICMP 70
•12 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Chilukuri [2024] NSWPICMP 70 |
| CLAIMANT: | Madhukar Chilukuri |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 12 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Shahzad dated 30 June 2022; at issue was whether treatment was reasonable and necessary; claimant injured in head on collision on 7 March 2019; claimant injured right cervical radiculopathy with right C5/6 nerve root impingement, fracture of right 1st rib, acute right parasternal costochondritis, right shoulder impingement syndrome including subacromial bursitis and right elbow acute medial epicondylitis, right supraclavicular fossa swelling; the MA found that exercise physiology treatment which was requested was reasonable and necessary in the circumstances; the insurer had previously provided significant exercise physiology treatment however the claimant apparently did not benefit from this treatment; the insurer subsequently undertook extensive surveillance observations of the claimant who was seen to perform activities inconsistent with his stated level of performance; the claimant subsequently withdrew his application but the insurer insisted on the Review Panel proceeding with its assessment; the Review Panel concluded that the overview of the video surveillance was that the claimant did not appear disabled at his work which contradicted the need for further treatment to his shoulder such as exercise physiology; the Review Panel was not satisfied that the recommended care and treatment was reasonable and necessary in the circumstances nor that the treatment or care recommended will improve the claimant’s recovery; Held – certificate of MA Shahzad revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Shahzad dated 30 June 2022. 2. The Review Panel has concluded that the claimant’s application is neither reasonable nor necessary and will not improve his recovery. |
STATEMENT OF REASONS
INTRODUCTION
Medical Assessor Shahzad (the Medical Assessor) determined that a request for exercise physiology was reasonable and necessary and would improve the recovery of the claimant.
The insurer sought a review of the certificate of the Medical Assessor and this application was successful. The application for this review now comes before the Review Panel for determination.
The accident
The accident occurred on 7 March 2019.
The claimant was proceeding in the left lane on Park Parade Parramatta when a car travelling in the opposite direction, collided head on with the claimant’s car. The speed zone was 50kmph. The claimant’s car door was jammed and he had to be assisted out of his car by a bystander. The police and an ambulance attended. The claimant was taken by ambulance to Westmead Hospital where he was admitted for approximately 24 hours.
Bundles of documents
The insurer has provided its bundle of documents upon which it relies.
The Panel have read all that documentation. Despite a request by the Panel to the claimant’s solicitors, no bundle of documentation has been produced by the claimant.
If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The dispute
As a result of the accident, the claimant suffered the following injuries;
a)Undisplaced fracture of his first rib;
b)Injury to his right shoulder and elbow with bruising and swelling;
c)Facial lacerations.
On 10 October 2020, 4D Health and Performance requested exercise approval for physiology treatment.
On 20 November 2020, the claimant’s legal representative received an email from the insurer which referred to this request. The insurer determined that it did not consider the treatment as reasonable and necessary.
This is a dispute between the claimant and the insurer about:
• whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Motor Accident Injuries Act 2017 (the Act), and
• whether treatment or care provided to an injured person will improve the recovery of the injured person under Schedule 2, s 2(c) of the Act.
The Medical Assessor found that certain treatment and care being exercise physiology treatment which was requested was reasonable and necessary in the circumstances.
Insurer’s submissions
The insurer relies on surveillance footage of Quantumcorp dated 2 December 2021.
The insurer submits that the associated footage showed the claimant serving customers in a United service station uniform, performing tasks such as sweeping, serving customers, using computers, standing for long periods of time, generally moving around with apparent ease, and driving.
The insurer says that footage taken on 23 November 2021 depicted the claimant reaching above his head with his phone and sweeping with a brush and broom.
The insurer says that there is no indication in the footage of any pain symptoms or restrictions in the claimant’s movement, particularly pertaining to the shoulders.
The insurer noted that the Medical Assessor, at page 8 of his certificate, stated the claimant had “painful and sluggish movements in the right shoulder” and exhibited reduced range of forward flexion to 160 degrees on examination. The insurer says that this is contradictory to the surveillance footage.
Further, the insurer says that at page 5 of the Certificate, the Medical Assessor states: “I have also reviewed and considered the surveillance footage and report of Quantum Corp dated 2 December 2021”.
The insurer says though, that despite reportedly viewing the footage, the Medical Assessor, at page 8 of his certificate, reports that the physical examination findings were “consistent with the documentation provided”.
The insurer submits that the claimant’s reported “painful and sluggish” movements and lack of range of movement are clearly not consistent with the surveillance footage depicting him moving his arms above his head with ease.
The insurer submits that the opinion of the Medical Assessor in his certificate, that the examination findings were consistent with the documentation suggests that he did not view the surveillance footage.
Alternatively, the insurer says that if the Medical Assessor had viewed the footage and still determined it was consistent with the examination, he was required to address the clear and obvious discrepancy between the clinical presentation and reported history, and the contrasting footage.
The insurer says that the Medical Assessor does not address the surveillance footage contents in his Certificate beyond merely mentioning that he had viewed the footage.
The insurer submits that, had the Medical Assessor considered the discrepancy in the surveillance footage and his examination findings, the decision would have been or might have been different.
The insurer submits that the footage was fundamental evidence in support of the insurer’s reply. The insurer says that the error on the part of the Medical Assessor was not trivial, insignificant or immaterial.
The insurer submits the Medical Assessor has:
(a) failed to consider integral evidence in his determination; or, alternatively
(b) failed to disclose his path of reasoning.
The insurer says that it had previously approved 7 Allied Health Recovery Request’s (AHRR) for physiotherapy, and 2 AHRR’s for exercise physiology, amounting to over 50 treatment sessions.
The insurer says that the claimant has undergone extensive treatment in the form of physiotherapy and exercise physiology to date. The insurer submits that it is not reasonable and necessary in the circumstances for the insurer to fund further sessions, for which it is clear the claimant is not benefiting.
The insurer notes the following capacities recorded in previous AHRR’s for exercise physiology:
(a) AHRR 1: Work – 8 hours, 3 days per week, Home – requires assistance, Community – decreased exercise tolerance, nil activities of leisure, unable prolonged driving;
(b) AHRR 2: Work – 5 Hours, 3 days and avoid all MH duties, max list 5kg. Home –
Independent but experiencing pain constantly. Community – Able to drive up to 60 minutes but limited by pain, and
(c) AHRR 3: Work – Off work, Home – Requires assistance. Community – Decreased exercise tolerance, unable to prolonged driving.
The insurer submits that the evidence suggests the claimant’s capacity for work, home and community activities has deteriorated since his last round of exercise physiology treatment. The insurer submits that it therefore follows that this treatment did not benefit the claimant.
The insurer says that in a report dated 21 September 2020, Dr Herald suggested a cortisone injection for the claimant and stated he would review him in six weeks. In particular,
Dr Herald stated “In the meantime I have recommended ongoing physiotherapy”. He did not recommend ongoing exercise physiology.
In the report of Dr Abraszko, neurosurgeon, dated 30 October 2020, Dr Abraszko states “I recommended him to continue physiotherapy until he realises that there is no further improvement”. She did not recommend ongoing exercise physiology.
The insurer states that s 4.77 of the Motor Accident Guidelines (the Guidelines) states that the insurer should apply the Clinical Framework for the Delivery of Health Services (the framework). The insurer notes the five guiding principles, particularly principle three, which states “empower the injured person to manage their recovery”. This includes “developing self-management strategies and promoting independence from treatment”.
The insurer submits that it is evident that the previous exercise physiology treatment did not improve the claimant’s recovery or promote self-management strategies and independence from treatment. Following on from this, the insurer submits that the request for further exercise physiology does not align with framework for the delivery of health services.
The insurer submits that taking into account the exercise physiology and physiotherapy treatment already funded by the insurer, in addition to the evidence that exercise physiology is not improving the claimant’s rehabilitation, then it is not reasonable and necessary in the circumstances to fund the treatment.
The insurer notes the five guiding principles of the clinical framework which are;
(a) measure and demonstrate the effectiveness of treatment;
(b) adopt a biopsychosocial approach;
(c) empower the injured person to manage their injury;
(d) implement goals focused on optimising function, participation and return to work, and
(e) base treatment on the best available research evidence.
The claimant’s submissions
No submissions have been provided by the claimant.
The medical evidence
The insurer relies on a Vocational Capacity Centre report of 27 June 2022.
It was reported that from the clinical perspective there were no significant signs of pathology impacting on the claimant’s right shoulder and the cervical and lumbar spine.
There were several inconsistencies noted in the claimant’s presentation which was said to suggest the impact of behavioural factors on his physical performance level.
It was reported that based on the abilities the claimant was willing to demonstrate at the assessment he was considered capable of undertaking a range of work falling within the sedentary work category. It was said that the claimant’s ability to undertake higher demand physical work, could not be determined due to his self-limited performance. It was reported that the claimant did not display the capacity to undertake the duties of his pre-injury position of console operator/site manager. However, this was said to be due to his self-limited performance. From the clinical perspective though, it was reported that there were no apparent physical restrictions that would prevent him from returning to this role.
The results in ability testing indicated below average nonverbal reasoning skills, which were said to be far below the expected level of performance, given the claimant’s educational attainments and work history.
These results, together with his responding on a test of visual recognition designed to distinguish between malingering and true memory impairments, raised serious concern over the reliability of the claimant’s obtained psychometric abilities performance. The expert said that this raised significant concerns about whether he was genuine in his effort during this assessment. It was concluded that the claimant’s performance on abilities testing in the assessment did not seem realistic.
The claimant was observed to be highly pain and disability focused throughout the assessment.
There were several inconsistencies noted in the claimant’s performance at this assessment suggesting exaggeration and embellishment of physical limitations. It was said that inconsistencies were not only apparent in the lack of a physical basis (clinical signs) to support the extensive level of functional limitation he displayed, but were also apparent in between test items, in the lack of reproducibility of results and in the lack of application of maximum voluntary effort.
Investigations were noted as follows;
“05.06.19MRI Right Shoulder - Mild subacromial bursopathy. Mild supraspinatus and anterior infraspinatus tendinosis. Bursal surface fraying of distal anterior supraspinatus tendon. Suggestion of intraarticular long biceps tendinosis and possible sprain injury of the biceps pulley.
21.06.19MRI Cervical spine and right supraclavicular area - Mild oedema around the proximal right first rib is in keeping with known recent fracture. No lesion is demonstrated in the supraclavicular fossa to account for the palpable swelling. There was mild cervical degenerative discopathy. There may be right C6 nerve impingement by the right posterolateral broad-based disc bulge at C5/6 but this could not be accurately assessed.
24.10.19Whole body bone scan - Stress reactions involving the left and right heels. Focus of increased uptake left side of the mandible, likely related to dental disease. No other active skeletal pathology is demonstrated elsewhere.
11.11.19 MRI arthrogram of the right shoulder - Moderate distal and insertional tendinosis of supraspinatus. Mild to moderate distal and insertional tendinosis of infraspinatus without frank tear. Moderate thickening of the subacromial/subdeltoid bursa presumed to represent a bursopathy.
21.11.19Ultrasound of the right supraclavicular region - There were no discrete mass lesions, no haematoma or drainable collections, no appreciable subcutaneous oedema. A right supraclavicular lymph node was visualised and it appeared normal. In summary, no abnormalities seen in the right supraclavicular region to account for the patient’s symptoms.
12.09.20MRI cervical spine - Developmental reduction in the AP diameter of the spinal canal extending from the level of C3/4 to C7/T1. At C5/6 there was a mild left paracentral to posterolateral disc osteophyte complex, which abuts and caused mild mass effect on the anterior surface of the cord (stable). At C6/7 mild central to right posterolateral disc protrusion, increased in size when compared with the previous study. Mild to moderate stenosis at the medial margin of the right neural exit foramen with possible irritation of the exiting right C7 nerve root.”
Dr Herald report dated 21 September 2020. The claimant reported to continue to have neck and right shoulder problems. On examination, he had tenderness over his cervical spine with pain over his right upper limb as well as tenderness over his greater tuberosity, biceps region and positive O’Brien’s test with mildly positive impingement symptoms. The claimant was said to have had an injection into his C6 nerve root on the right side which gave him at best 60% partial relief. Dr Herald was uncertain if the pain was coming from the shoulder or his neck. It was noted by Dr Herald that the claimant was due to see a neurosurgeon regarding his neck and was seeing a cardiothoracic surgeon about his chest. Dr Herald suggested an intra-articular injection of cortisone and local anaesthetic into his glenohumeral joint where the SLAP (superior labral anterior posterior) lesion was, to determine what percentage of pain was coming from his shoulder and what percentage was coming from his neck.
Dr Abraszko report of 30 October 2020. The claimant was noted to work in petrol stations. Work included mopping, general cleaning and store duties. He had been doing this work for six years. The claimant said that he had not been working for the two weeks prior to this examination. At hospital he was diagnosed with injuries to his cervical spine, shoulders and chest. He had a right 1st rib fracture. He was discharged after 24 hours. He saw his GP one week later. The claimant said that he was off work for four months and then on light duties. He went on holiday. He returned to “the COVID situation in Australia” in about July, and he started to have severe pain going down his right arm, right shoulder and right wrist. An MRI revealed right sided C5-C6 posterolateral disc osteophyte complex and moderate stenosis at right C6-C7 level. It was also reported that there was a left postero-lateral C6-C7 disc protrusion. The claimant complained mainly of neck pain radiating to his shoulder. He could not move his shoulder freely. Then he said that the pain radiated to his wrist. It was said that clearly, he had problems in his neck, shoulder and right wrist. The claimant’s young age was noted. It was said that while he had problems in the left side at C6-C7 level, at that time, he was asymptomatic.
Dr Abraszko said that she was probably in favour of C5-C6 and right C6-C7 posterior foraminotomy as the first stage to avoid adjacent level disease and long segment fusion in a person of such a young age. She said that the claimant should then also undergo treatment with Dr Herald, since some of the pain which he was describing was said to emanate from the shoulder and the wrist joint.
It is submitted that the claimant’s current capacity has reduced to three hours over a period of three days as prescribed by his nominated treating doctor, Dr Khan. Dr Khan has also recommended the claimant for exercise physiology due to his current complaints, including but not limited to the following:
• pain and discomfort in the right shoulder;
• upper extremity radiculopathy;
• impingement signs;
• tenderness over the right scapula;
• tightness to the right shoulder, and
• neck pain with radiation of discomfort to right upper limb.
Certificate of Medical Assessor Shahzad dated 30 June 2022. It was reported that the claimant had a reduced range of motion despite receiving physiotherapy treatment. He has developed muscle atrophy in the right upper limb which is impacting on the strength of his right shoulder. He has also had muscle imbalance of the right upper musculature due to a prolonged period away from the workforce and deconditioned state. He had developed muscle atrophy in the right upper limb which was impacting on the strength of his right shoulder. He had had poor shoulder girdle stabilisation, and glenohumeral and scapulohumeral stability.
Apart from the rib fracture, the claimant was later diagnosed with right cervical radiculopathy with right C5/6 nerve root impingement, acute right parasternal costochondritis, right shoulder impingement syndrome including subacromial bursitis and rotator cuff injury, right elbow acute medial epicondylitis and right supraclavicular fossa swelling in December 2021.
On examination the claimant demonstrated painful and sluggish movements in the right shoulder. Forward flexion was noted to 160 degrees. There was tenderness over the right supraclavicular area and evidence of a small lump with muscle guarding and stiffness over the right supraclavicular area. Jobes, Hawkins and Neer impingement testing were positive. Contralateral examination of the left shoulder was normal. Neurological examination of the upper limbs was normal bilaterally.
The Medical Assessor determined that in his opinion, regarding whether treatment and care was reasonable and necessary, the request for further exercise physiology treatment with respect of the shoulder injury caused by the accident was reasonable and necessary for the purpose of the Act.
Regarding treatment and care and whether it would improve recovery, the Medical Assessor said that in his opinion, the request for further exercise physiology treatment, concerning the shoulder injury caused by the motor vehicle accident, would improve the claimant’s recovery.
Panel medical examination
Originally, the claimant was to have been examined on behalf of the Review Panel by Medical Assessor Gibson. However, the claimant failed to attend the scheduled appointment. Subsequently, the claimant’s solicitors informed the Review Panel that the claimant withdrew his application. The insurer was not prepared to accept this and required that the Review Panel make its determination. Accordingly, the Review Panel Medical Assessors have assessed the claimant’s condition on the papers. Their report follows:
“The original review application for the insurer was a treatment dispute. This was the subject of the assessment and Certificate of Medical Assessor Farhan Shahzad dated 30 June 2022. The Medical Assessor said that the request for exercise physiology treatment would improve recovery.
The insurer has disputed this and although the claimant has withdrawn the request, the Insurer wants the matter resolved on the papers.
The background through the dispute was that the claimant, at the time of the subject motor vehicle accident, was working as Assistant Manager for Coles Express eight hours a day, five days a week. This involved supervising co-workers, general cleaning, store duties, serving customers, using the cash register and standing for prolonged periods of time near the computer. He had been in this position for six years.
The claimant was involved in a motor vehicle accident on the 7 March 2019 when he was driving home at 3.45pm and it had been raining. He was driving from Pitt St to Alexander St at 50 km/h when another vehicle travelling at speed hit the driver’s side of his vehicle.
The airbags in the claimant’s vehicle deployed. He was wearing a seat belt. He required extrication by witnesses.
Both Ambulance and Police attended the accident. The vehicle was subsequently written off.
The claimant was taken by ambulance to Westmead Hospital. He had investigations which revealed:1. Undisplaced fracture of his first rib;
2. Injury to his right shoulder and elbow with bruising and swelling;
3. Facial lacerations.
He was treated, observed and discharged to the care of his GP and commenced taking Lyrica for neuropathic pain and Codeine as required.
An MRI in 2020 revealed a right sided C5/6 posterolateral disc osteophyte complex and moderate stenosis at the right C6/7 level and there was evidence of a posterolateral C6/7 disc protrusion.
He was seen by a number of specialists including Dr Renata Abraszko, neurosurgeon, who recommended conservative management with physiotherapy. He saw two orthopaedic surgeons, Dr Anil Nair and Dr Jonathan Herald. No operative intervention was indicated but Dr Jonathan Herald, in his review on the 21 December 2020, noted the claimant had right C6 perineural cortisone injection for the C6/7 disc prolapse which gave him partial relief. He noted that there was also some pain in his neck for which he had seen the neurosurgeon and that he was also seeing a cardiothoracic surgeon with regard to his chest injury.
An intraarticular injection of cortisone and local anaesthetic to the glenohumeral joint was suggested where there was a SLAP (superior labral tear) to determine what percentage of pain was coming from his shoulder and what percentage was coming from his neck.
Dr Abraszko, in her letter of the 30 October 2020, had opined that the claimant complained of neck pain radiating to the shoulder and also had difficulty moving the shoulder freely and that some pain radiated to the wrist. She noted that the claimant had tenderness and a painful wrist and decreased sensation at the second and third fingers and reflexes were present.
She opined that the claimant has problems in his neck, shoulder and right wrist and that there was a problem on the left side of the C6/7 level but at the moment, he was asymptomatic and was scared of having any surgical intervention and was undergoing physiotherapy, which she felt should continue. She reported that should he not settle, there was a consideration of favouring a C5/6 and right C6/7 posterior foraminotomy to avoid any adjacent level disease and any long segment fusion at such a young age.
The claimant’s Certificate of Capacity/Certificate of Fitness on 25 September 2019 diagnosed:1. Right cervical radiculopathy and right C5/6 nerve root impingement;
2. Fractured right first rib;
3. Acute right paracentral costochondritis;
4. Right shoulder impingement syndrome including subacromial bursitis and rotator cuff injury;
5. Right elbow acute medial epicondylitis;
6. Right supraclavicular fossa swelling.
It was noted on the Certificate that the claimant was an Assistant Site Manager at Coles Express and that on telehealth review on 18 January 2021 he had returned to work as a console operator at Coles Express, Thornleigh, certified for 8 hours a day, three days a week. He was to commence a graduated trial of increased work capacity by two hours per fortnight over the next eight weeks, with an aim to be working 40 hours per week at the eight week mark. He was to cease the work trial if unable to cope.
At that stage, management sought was PRP injections to the right shoulder and a general surgical opinion of the swelling at the right supraclavicular fossa, spinal surgeon and orthopaedic review and manual therapy and topical anti-inflammatories. He was referred to a cardiothoracic surgeon for the sternal pain and the spinal surgeon, Dr Abraszko, as noted above.
As noted by the Medical Assessor in his Certificate of 30 June 2022, the claimant was terminated from his employ on 8 August 2021 and remained unemployed.
There was video surveillance of the claimant available to the Medical Assessor, which showed the claimant was able to perform unrestricted work activities at the service station. However the Medical Assessor still felt it was reasonable and necessary, in the circumstances, for the claimant to have exercise physiology treatment and that the exercise physiology treatment was causally related and would improve the recovery of the injured person.
This is at odds with the evidence where the claimant was able to raise his hands and lift above shoulder height and was able to lift garbage bins and appeared to have a good range of motion of the right shoulder reaching up and did not appear to show limitations of workplace activities.
The Quantumcorp surveillance report dated 21 December 2021, where he had approximately 172.5 minutes of surveillance, during 80 hours of surveillance, from 4 October 2021 until Monday 29 November 2021. The background for the surveillance was in reference to clearance for suitable duties 3 hours a day, three days a week. During the first period of observation, the claimant attended the service station under construction fit out on one day for approximately 6 hours and was on site and had a lunch break of one hour and was moving around the service station and engaged in a supervisory role. He was then observed consulting with several workers and during the latter period of observation, he attended the service station serving customers, using the cash register and standing for long periods using a computer and was also using a broom to sweep the surrounding area. He was observed carrying signage and brought it inside the service station and was observed carrying several large garbage bags with his right arm and was observed standing for long periods of time while using a computer and was observed moving in a quick and normal manner at all times. He showed no signs of dizziness when turning. He was observed walking short distances, but standing for long periods of time. The claimant held a notebook and soft drink bottle with his right hand and was observed carrying large garbage bags and using a broom with his right hand.
Further surveillance on 22 November 2021 showed the claimant arriving at his place of work at the New United service station in Windang. The claimant was observed arriving, driving a Mitsubishi SUV, parked and entered the store. He was observed sweeping the surrounding areas, serving customers and using a cash register, wearing a United Service Station uniform and departed at 2.00 pm.
The surveillance on Wednesday 24 November showed the claimant at the New United service station, arriving at work, carrying a backpack, wearing his uniform. He was observed serving customers, using a computer, standing for long periods of time, using a broom to sweep the surrounding area, cleaning windows and using his right arm and talking to tradies and departed 9 hours later.
On Monday 29 November 2021 he was observed within the store carrying large garbage with his right hand to a storage container, before returning to the store and moving out of view.
The observations on 4 October 2021 are non-contributory. The surveillance observations on Wednesday 6 October 2021 showed the claimant moving around inside the shop, bending and carrying a display sign and then then left in an Uber.
The observations on Monday 22 November 2021 noted the claimant was talking on his phone for several minutes before moving out of view and serving customers, using the cash register and moving his head and neck freely.
Subsequent observation on 23 November 2021 showed the claimant standing on a stool or step with both arms raised above his head while taking a photo of the top of the door and then stepped down and moved out of view. He was subsequently seen carrying a broom and dustpan on a stick and was observed to sweep around the surrounding area and inside the store, using his right arm, before moving out of view. He was also using a computer at work.
Observations on 24 November 2021 showed the claimant continued to work in a quick and normal manner, serving customers, using the cash register, moving his head and neck freely and standing for long periods of time. When he arrived at work that day, he alighted from the driver's seat, walked into the store carrying his backpack over his right shoulder, wearing his uniform. He did similar sweeping duties with a broom and dustpan on a stick, as seen previously, and surveillance on 25 November 2021 was non-contributory, as was the surveillance on 26 November 2021 and 27 November 2021.
On 29 November 2021 he was seen emerging from the store wearing a United 24 High-Viz shirt, carrying several large garbage bags. He carried the bags to a storage container where he was observed bending over at the waist before walking back to the store and out of view.
The overview of all this video surveillance was that the claimant did not appear disabled in his work at the servo and appeared to contradict the need for further treatment for his shoulder, such as exercise physiology. It was deemed that the treatment would not improve recovery of the injured person.
In summary, the Review Panel’s position, on this treatment dispute, is that it is not reasonable and necessary and would not improve recovery.”The Review Panel adopts the report of the Medical Assessors.
Causation
The Review Panel is satisfied that the claimant suffered injuries as a result of the accident which occurred on 7 March 2019. This seems to have been a head on collision with the speed limit was 50kmph. The Review Panel does not know the impact speed however, assumes that the impact was not negligible. The nature of the injuries suffered by the claimant, are, in the experience of the Medical Assessors, likely to arise in an accident of this nature.
Reasonable and necessary
In AAI Limited v Phillips [2018] NSWSC 1710,Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the meaning of the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in sub-section 58(1) of the MAC Act.
Davies J found the motor accident need only be a material contribution to the need for treatment. His Honour further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
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 1987in Clampett v WorkCover Authority of NSW [2003] NSWCA 52, Grove J stated:
“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.”
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation - See ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48], and Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113].
Reasons
The Review Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Personal Injury Commission, and whether the treatment sought is reasonable and necessary and if it arises because of contribution by the accident. Following on from this, the Review Panel must decide whether the accident materially contributed to those injuries and need for treatment.
The Review Panel is satisfied the claimant’s injuries could reasonably have arisen as a result of the accident.
However, the Review Panel is not satisfied that the treatment and care recommended, being exercise physiology, is reasonable and necessary in the circumstances nor that the treatment or care recommended, being exercise physiology, will improve the recovery of the claimant.
The Review Panel has reviewed the surveillance report and observations relied on by the insurer. The surveillance shows the claimant interacting at his usual work at a service station and undertaking what would appear to be normal work duties, without restriction. These activities are inconsistent with the claimant’s complaints of injury and disability.
The Review Panel also accepts the submission of the insurer that the claimant has undergone extensive treatment in the form of physiotherapy and exercise physiology amounting to over 50 treatment sessions. The claimant’s evidence is that he has not benefited from such treatment. The insurer says that is therefore not reasonable to provide further treatment if the claimant will not benefit from this. One of the guiding principles of the clinical framework, is to be able to measure and demonstrate of the effectiveness of treatment. In this instance it is the finding of the Panel that the effect is that there is no benefit. The claimant’s complaints are inconsistent with the surveillance observations which records him, over many different days, performing unrestricted activities.
The Review Panel is not satisfied, following review of the surveillance observations, that the claimant has demonstrated an inability to undertake work tasks. On the basis of these observations, the claimant does not need exercise physiology treatment to improve his recovery or promote self-management strategies and independence from treatment.
Conclusion
The Review Panel has concluded that the claimant’s application for treatment by way of exercise physiology is neither reasonable nor necessary and will not improve his recovery.
Determination
The Review Panel revokes the certificate of Medical Assessor Shahzad dated 30 June 2022.
The Review Panel has concluded that the claimant’s application is neither reasonable nor necessary and will not improve his recovery.
0
4
0