QBE Insurance (Australia) Limited v Galinato
[2024] NSWPICMP 711
•11 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Galinato [2024] NSWPICMP 711 |
CLAIMANT: | Lorna Galinato |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | David McGrath |
DATE OF DECISION: | 11 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was injured in a motor accident on 3 December 2020 when she was stationary in a vehicle waiting for the traffic to clear before turning; her vehicle was struck in the rear; airbags did not deploy; ambulance and police officers were not called; claimant says she experienced low back pain within a few days; claimant also says she experienced no cervical pain until some 9 days after the accident, when pain was felt in the neck, left shoulder and left arm; claimant suffered cervical spine injuries in 2 previous rear-end motor vehicle collisions; the insurer admitted liability for the claim; treatment dispute regarding request for consultation with neurosurgeon/neurologist before possible further cervical surgery; insurer refused to fund the consultation on basis that it related to pre-existing condition for which claimant underwent cervical fusion in 2017; Held – Medical Review Panel satisfied that motor accident was causal and that requested specialist consultation both reasonable and necessary; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - CAUSATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) 1. The Review Panel confirms the certificate dated 31 October 2023. CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) 2. The Review Panel confirms the certificate dated 31 October 2023. |
STATEMENT OF REASONS
INTRODUCTION
Lorna Galinato (the claimant) was injured in a motor accident on 3 December 2020 (the accident) when she was stationary in a vehicle waiting for the traffic to clear before turning. Her vehicle was struck in the rear by a Ford Territory 4-Wheel Drive. Following the collision, both vehicles were moved to a safe position, where the drivers exchanged details. Airbags did not deploy. Both cars were driven from the scene. Ambulance and Police Officers were not called. The claimant says that she experienced low back pain within a few days. The claimant also says she experienced no cervical pain until some nine days after the accident, when pain was felt in the neck, left shoulder and left arm. The claimant suffered cervical spine injuries in two previous rear-end motor vehicle collisions. The claimant underwent C5/C6 anterior cervical discectomy and fusion in April 2017 at Liverpool Hospital. Right-sided symptoms of radiculopathy disappeared following that surgery.
The claimant says that pain in the left shoulder and arm, and loss of sensation in the three central fingers of the left hand has continued without change. The claimant was referred to a neurologist who ordered nerve conduction studies of the upper extremities. The claimant had a cervical spine injection of steroid at C4/C5 and a left C6/C7 transforaminal steroid injection. In June 2023, the claimant underwent left-side C4/C5 and C6/C7 foraminotomies via a posterior cervical approach. The symptoms of pain in the cervical spine, left shoulder and left arm, with associated numbness in the central fingers of the left hand, have abated since those procedures.
The insurer indemnified the owner and/or the driver of the vehicle at-fault for liability to pay the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer admitted liability for the claim.
There is a dispute between the claimant and the insurer about:
(a)whether the request for a consultation with a neurosurgeon/neurologist for the cervical spine relates to the injuries caused by the accident; and
(b)whether the request for consultation with a neurosurgeon/neurologist for the cervical spine is reasonable and necessary in the circumstances.
ASSESSMENT UNDER REVIEW
The medical assessment the subject of the review was conducted by Medical Assessor Adam Rapaport who certified on 31 October 2023 as follows:
The following treatment and care:
- Consultation with a neurosurgeon/neurologist for the cervical spine
RELATES TO THE INJURY caused by the motor accident and IS REASONABLE AND NECESSARY in the circumstances.
Medical Assessor Rapaport stated that radicular symptoms in the left arm, causing shooting pain and associated numbness in some of the fingers of the left hand, had not been present prior to the motor accident. He was satisfied that, because those symptoms appeared following a whiplash injury to a vulnerable post-discectomy and post-fusion cervical spine, there is a nexal relationship between the trauma inflicted as a result of the most recent motor accident and the appearance of new symptoms of left-sided radiculopathy. Because a causal relationship had been established between radicular symptoms and the whiplash injury to the cervical spine, caused by the subject accident, Medical Assessor Rapaport thought it reasonable and necessary for neuro specialists to be consulted.
THE REVIEW
The insurer sought a review of Medical Assessor Rapaport’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects. The insurer brought the application within the time prescribed by
s 7.26(10) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).The insurer submitted that Medical Assessor Rapaport erred in his assessment on the following bases:
(a) The Medical Assessor did not engage with the insurer’s submissions relative to the reasonableness and necessity of the neurologist/neurosurgeon consultation. The insurer noted that the claimant was not treated by ambulance personnel, nor did she attend hospital for treatment, following the accident. The accident was reported to be minor and there was a lack of complaints to the claimant’s general practitioner post-accident regarding neck pain. The insurer submitted that Medical Assessor Rapaport did not address the lack of contemporaneous complaints of left-sided cervical spinal injury.
(b) Failure to consider key evidence of pre-existing injuries and reliance on the claimant’s subjective reporting. The insurer submitted that Medical Assessor Rapaport relied on the claimant’s subjective reporting that the “radicular symptoms in the left arm causing shooting pain and associated numbness in some of the fingers of the left hand had not been present prior to the motor accident”. The insurer says that the quoted statement is simply untrue and inconsistent with medical records outlined in the insurer’s submission. The insurer observes that the medical assessor did not address, nor put to the claimant, the clear contradiction between her statement and the objective medical evidence.
(c) The insurer submitted that the inconsistencies in the medical records and clinical findings, on which the insurer relies, have not been brought to the attention of the claimant by the medical assessor, which constitutes a material error which has denied the insurer procedural fairness.
The insurer’s application for review was opposed by the claimant. The claimant’s submissions can be stated briefly as follows:
(a) The insurer did not provide any evidence in support of its allegation that the medical assessor did not engage in the arguments presented by the insurer, nor the insurer’s similar allegation that the medical assessor failed to consider key evidence of pre-existing injuries, in reliance on the claimant’s subjective reporting. The claimant noted that Medical Assessor Rapaport specifically mentioned the insurer’s submissions.
(b) The insurer did not identify any complaints of neck pain between the surgery in April 2017, and the date of the accident, a period of almost three years. The claimant challenged the insurer’s submission about a lack of contemporaneous evidence as being misconceived. The claimant says that the only evidence relied upon by the insurer relates to symptoms pre-dating the claimant’s surgery in
April 2017, which resolved following that operation, and that Medical Assessor Rapaport clearly considered the claimant’s previous history and addressed the issue of causation.(c) As to the insurer’s submission there was an alleged contradiction between the medical records and the claimant’s subjective reporting that the radicular symptoms in the left arm had not been present prior to the motor accident, the claimant said that she never denied, and Medical Assessor Rapaport clearly noted, that the claimant had prior injuries to her neck, for which she underwent major surgery. The claimant submitted that the fact there were no further complaints following that surgery, until after the accident, indicates that there was no inconsistency between the claimant’s reporting and the medical records, and therefore no requirement for Medical Assessor Rapaport to put the issue to the claimant.
(d) The claimant submitted that the insurer’s numerous allegations of material errors in the assessment are erroneous and/or have not been demonstrated. The claimant further submitted that the contentions are merely a difference of opinion to that of the qualified medical assessor, and accordingly have no merit.
President’s delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 4 March 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Rapaport’s assessment was incorrect in a material respect. The bases of that decision were stated to be Medical Assessor Rapaport’s failure to consider key evidence of pre-existing injuries and consider objective, rather than contradicting subjective evidence, as well as incorrect details recorded by the medical assessor about the contemporaneous evidence.
Accordingly, the application was accepted and was referred to the Review Panel, which must determine if the motor accident was a material contributing cause to the need for a neurosurgical consultation. The Review Panel also must determine if a consultation with a neurosurgeon/neurologist for the cervical spine was necessary and reasonable, in the circumstances.
The Review Panel notes that the claimant underwent surgery in the form of C4/C5 and C6/C7 foraminotomies on 27 June 2023, as a public patient, with a reportedly good outcome.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [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 cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Certificates of Capacity by Dr Charles Ong dated 24 December 2020 and 19 January 2021.
Diagnosis is whiplash injury neck.
(b) Report dated 7 May 2021 by Anthony Frketic, physiotherapist, relating to treatment of the cervical spine and recommending neurologist/neurosurgeon review.
(c) Certificate of Determination – internal review – dated 16 June 2021.
The internal reviewer confirmed the insurer’s decision to decline payment for neurologist/neurosurgeon consultation for the reason that it is not reasonable and necessary, in the circumstances.
(d) MRI cervical spine reported on 10 June 2021 by Dr Adrew Law.
Comment: There is moderate left C6/C7 foraminal stenosis with impingement of the left C7 nerve. Mild to moderate left and mild right foraminal narrowing at C5/C6 with potential irritation of the left C6 nerve. Mild bilateral C4/C6 foraminal narrowing.
(e) CT cervical spine reported on 14 May 2021 by Dr Alvin Chan.
Comment: Previous cervical fusion at the C5/C6 level. Alignment is anatomic with the patient supine. Central disc protrusions at the C3/C4 and C4/C5 levels causing distortion of the anterior theca. No significant foraminal stenosis appreciated laterally. At the C5/C6 level, prominent posterior osteophytes are noted causing distortion of the anterior theca. Mild osteophytic narrowing of the C5/C6 neural exit foramina is noted bilaterally. No significant disc protrusion seen elsewhere. Mild osteophytic narrowing of the left C6/C7 neural exit foramen is noted. The remaining visualised neural exit foramina outline normally.
(f) Initial assessment report dated 3 June 2021 by Dr Eric Lim.
Injuries: Neck/shoulder/back/knee
Diagnosis: Cervical spine aggravation, C3/C4, C4/C5 disc protrusion, C5/C6 bilateral foraminal stenosis (CT 14/05/21); right shoulder strain; thoracic spine strain; lumbar spine strain; bilateral knee strain; adjustment disorder.
Dr Lim relates all of the those injuries to the motor accident.
(g) Clinical notes of Mt Druitt Medical and Dental Centre as at 22 April 2021.
(h) Allied Health Recovery request dated 7 January 2021 by Dr Ong.
Diagnosis: Neck Whiplash Associated Disorder, Acute on chronic lower back pain. Dr Ong says the claimant has been experiencing worsening neck and lower back pain since her car accident on 3 December 2020.
(i) Report dated 8 January 2021 by Judy Kennedy, physiotherapist, to Dr Ong.
Ms Kennedy provides a provisional diagnosis of WAD and acute on chronic lower back pain. Ms Kennedy says the claimant is reporting that she is experiencing dizziness since the accident and also reports dizziness with sustained cervical extension.
(j) Clinical notes of Greenfield Physiotherapy (various dates).
(k) Clinical notes of In Control Physiotherapy (various dates).
(l) Clinical notes of Provincial Medical Centre as at 25 February 2021.
(m) Report dated 9 December 2017 by Dr Renata Abraszko, neurosurgeon and spinal surgeon, to the claimant’s former solicitors.
This report relates to the claimant’s pre-accident history following a work-related injury in December 2009 and a 2016 motor accident. Dr Abraszko stated that the claimant provided consistent history with radiological examination and neurological findings. The diagnosis was whiplash injury to the cervical spine which resulted in C5/C6 disc injury and aggravation of pre-existing injury to the lumbar spine. Dr Abraszko noted that the generative changes visible on the MRI of the cervical spine were completely asymptomatic prior to the accident.
Dr Abraszko noted that the claimant underwent C5/C6 anterior cervical discectomy and fusion, which was said to be reasonable and necessary and required as a consequence of the 2016 motor accident. Dr Abraszko found that the cervical spine injuries had stabilised and assessed 25% whole person impairment for the cervical spine.(n) Clinical records of Dr Abraszko and Dr Abraszko’s correspondence with the claimant’s former solicitors, Dr Ong and the insurer between 2012 and 2017 with some clinical record.
(o) Clinical records from Provincial Medical Centre.
There is a report dated 8 January 2021 from Judy Kennedy, physiotherapist, to Dr Ong, which states that the claimant presented with complaints of neck and radiating pain into the right arm following the subject accident. The claimant was reporting dizziness with cervical extension.
There are various certificates of capacity/fitness dated 3 December 2020 in which Dr Ong refers to whiplash injury neck.
There is a bone scan of the entire cervical spine performed on 4 August 2021 reported by Dr Petel.
There is a report of nerve conduction studies reported on 23 November 2021 by Dr Hassan, neurophysiologist.
There is a clinical note dated 28 September 2021 which reads as follows:
“Needs to have ultrasound of elbow. Told about nerve conduction studies costs. List of neurologist given. Had fusion C5/C6, problem may be coming from higher up.”
There is a letter dated 9 June 2022 from Dr Abraszko to Dr Ong confirming the claimant decided to proceed with left C4/C5 and C6/C7 posterior foraminotomy despite explained risks and long waiting list.
(p) Claimant’s further submissions dated 26 August 2024.
was [DT1] submitted for the claimant that the clinical notes of Dr Charles Ong (Provincial Medical Centre) as at 22 July 2024, support the claimant’s assertion that she did not have neck pain or symptoms following her anterior cervical discectomy and fusion surgery on 13 April 2017 up to the date of the subject motor accident. It was further submitted that the last entry by Dr Ong referencing the claimant’s neck is from 30 September 2017 which states “Neck fusion all good” and there are no additional complaints after the subject motor accident, more than three years thereafter.
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s review application submissions dated 17 November 2023 (previously summarised).
(b) Insurer’s submissions dated 5 July 2021.
The insurer summarised the claimant’s pre-accident medical condition particularly with reference to reports by Dr Manohar, consultant physician, in musculoskeletal medicine, a report dated 8 February 2017 by Dr Thomson, medico-legal consultant surgeon and clinical notes from various treatment providers. Reference also was made to the post-accident treatment records. The insurer submitted as follows:
·The subject motor accident was minor in nature. Police and ambulance personnel did not attend. The claimant did not require hospital treatment.
·The claimant was involved in two prior motor vehicle accidents (2011 and 2016) in which she suffered injuries to her head, neck, right shoulder and lower back.
·The claimant underwent a cervical spine fusion at the C5/C6 level on 11 April 2017.
·The claimant was assessed by Dr Thomson in 2017 as having suffered 15 whole person impairment as a result of her cervical spine injury.
·Any current symptom relating to the cervical spine relate to the claimant’s significant pre-existing injuries and symptoms.
·At the first consultation with her GP three days after the subject accident, the claimant said that she had “no new neck pain”. The claimant was noted to have suffered a similar motor accident the previous January resulting in neck pain.
·There are significant causation issues in regard to the reported symptoms in the cervical spine. The claimant’s post-accident radiological scans of the cervical spine do not reveal any acute or traumatic injuries. A comparison of the claimant’s pre-accident MRI and CT scans of the cervical spine with her post-accident CT and MRI scans do not reveal any substantial changes. Any slight variation between the pre and post-accident pathology is indicative of a natural progression of the claimant’s pre-accident condition.
·At most, the claimant suffered a minor soft tissue exacerbation of her significant pre-existing cervical spine injuries, which has since resolved.
·The claimant’s alleged symptoms and injuries, causally related to the subject accident, do not warrant neurosurgical review. Any neurological symptoms requiring consultation with a neurosurgeon and/or neurologist are related to the claimant’s well-documented and substantial pre-existing cervical spine injuries.
(c) Report of Dr Manohar dated 6 November 2012 to Dr Ong.
Dr Manohar refers to a rear-end collision in 2011 since when the claimant had pain and stiffness in her neck and right shoulder extending to the right wrist.
Dr Manohar recommended a MRI scan of the cervical spine.(d) MRI of the cervical spine reported on 26 November 2012 by Dr Wenderoth.
Comment: Mild left foraminal narrowing at C4/C5. Moderate to severe bilateral foraminal narrowing and moderate to severe central canal stenosis at C5/C6.
(e) Report dated 10 December 2012 by Dr Manohar to Dr Ong.
The scan of the cervical spine shows facet joint changes at the C3/C4 and C4/C5 levels. Dr Manohar recommended an ultrasound study of the right shoulder.
(f) Report of Dr Manohar dated 21 January 2013 to Dr Ong.
The MRI scan of the cervical spine shows facet joint changes at the C3/C4, C4/C5 and C5/C6 levels. Right shoulder abduction is quite uncomfortable with subacromial pain. Dr Manohar recommended subacromial infiltration.
(g) Motor Accident Personal Injury Claim form dated 26 January 2016.
Injuries listed are neck pain, right shoulder pain, numbness right hand, low back pain worse and shock/psychological injury. Previous neck and back injuries in 2009 are disclosed.
(h) MRI cervical spine reported on 24 March 2016 by Dr Hazan.
Impression: Canal stenosis at C5/C6. Significant changes at C6/C7 on the left.
(i) Referral by Dr Ong to Dr Abraszko dated 5 April 2016 for treatment of trapezial pain with pins and needles on both hands.
(j) Report of Dr Thomson dated 8 February 2017 to the claimant’s then solicitors.
Dr Thomson gives a diagnosis of ongoing aggravation of previously asymptomatic cervical spondylosis with left upper limb radiculopathy attributable to the 2016 motor accident. Dr Thomson refers to a separate impairment report which is not in evidence.
(k) Discharged referral from Liverpool Hospital following C5/C6 anterior cervical discectomy and fusion in April 2017.
(l) Certificates of Capacity dated 3 December 2020 referencing whiplash injury neck.
(m) Allied Health Recovery Request forms (various dates).
(n) QBE questionnaire completed by Dr Ong on 28 January 2021 giving a diagnosis of whiplash injury. Expected treatment is physiotherapy with possible future MRI cervical spine.
EXAMINATION REPORT
The claimant was assessed on 19 June 2024 for the Review Panel by Medical Assessor David McGrath whose report is as follows:
Name: Lorna Galinato
Date of Birth: 31 August 1968
Date of Accident: 3 December 2020
Date of Examination:
Examiner Dr DN McGrath
1. Pre-accident medical history and relevant personal details
Ms Galinato is 55 years of age. She has three adult children. She emigrated from the Philippines when she was 20 years old. In the Philippines, she had qualifications as a midwife and x-ray technician but these were not accepted in Australia. She has had the following occupations:
1.Hotel housekeeper
2.Machinist
3.Chocolate factory worker
4.Aged care laundry
In 2009, she injured herself in the laundry with low back pain and after three years of unsuccessful rehabilitation was released from employment. She has not returned to work since then.
Ms Galinato was involved in an MVA on 12 May 2011 which led to some neck and shoulder pains. She was treated by an interventional pain doctor and states that her pains resolved.
She was in a second accident in 2016 while her car was in a carwash. Again, she was hit forcibly from the rear. This again led to neck and shoulder pains and culminated in a C5/6 cervical fusion in 2017 by Dr Abraszko.
Ms Galinato is adamant that she had no symptoms in the neck region from 2017 through to 2020. When quizzed about an MRI scan requested by Dr Abraszko, she could not recall the test but offered the explanation “to make sure the neck is alright”. She further states that most of her general practitioner visits were for ongoing low back pain.
2. History of the motor accident
Ms Galinato was involved in an MVA on 3 December 2020. She was in a slipway waiting to merge with traffic when she was hit from the rear. Her small Mazda 2 vehicle was hit by a much larger four-wheel drive. Police and ambulance were not in attendance. Her car was drivable.
3. History of symptoms and treatment following the motor accident
Ms Galinato did not feel particularly injured at the time of the accident but over the next few days developed significant low back pain and consulted her general practitioner, Dr Ong.
From her account and the records, she did not experience significant neck pain until 12 December 2020, some nine days after the accident. Her neck pain was associated with left and right shoulder pains somewhat alternating.
She was prescribed some physiotherapy which began on 4 January 2021 which, by her account, made her worse. She requested a new physiotherapist who saw her on 15 January 2021. She received 18 sessions but again it was ineffective.
Over this period, she developed paraesthesia into both arms and it was suggested that she a neurosurgeon. She reconsulted Dr Abraszko who proceeded with needle injections at the C4/5 and C6/7 levels. These interventions were also unsuccessful. She accepted surgery on the public purse on 27 June 2023 in the form of C4/5 and C6/7 foraminotomies. Ms Galinato reports a good outcome from this procedure in removing the paraesthesia. Her neck pain continues.
4. Details of any relevant injuries or conditions sustained since the motor accident
None.
5. Current symptoms
Ms Galinato just reports general stiffness and discomfort in the neck region. She does not report any paraesthesia. The neck pain does not interfere specifically with any activities of daily living. She stopped work as a result of her lower back pain.
6. Current and proposed treatment
Ms Galinato takes one Lyrica tablet for lower back pain. She also takes Panadol on a prn basis, also for lower back pain.
There is no specific treatment for her neck.
7. Examination
Cervical Spine
The neck area was carefully examined. She has a right lower anterior neck scar from the 2017 C5/6 cervical fusion. She has a midline sagittal posterior scar from the occiput to the base of the neck from the more recent surgery.
Neck movements were mildly restricted consistent with the C5/6 fusion. No active muscle spasm or guarding was noted. She does not have non-verifiable radicular complaints.
Neurological examination of the upper limbs was normal. That is, she had normal deep tendon reflexes, power and sensation. She did not have radiculopathy.
8. Consistency
Addressed above.
9. General Assessment (Diagnosis and Cause)
Ms Galinato was involved in an MVA on 3 December 2020. She did not feel injured at the time of the impact but within a few days developed significant lower back pain superimposed upon on her chronic symptoms in this area.
Nine days after the accident, on 12 December 2020, she was more aware of neck pain with some shoulder radiation. After some ineffective physiotherapy, she had bilateral paraesthesia which led to a surgical consultation and ultimate neck surgery.
Ms Galinato had no explanation for the delay in symptoms in the neck region but suggested that it may relate to preoccupation with the lower back pain.
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 permanent impairment resulting from injury under the worker’s compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson[5]. These principles are well-settled and equally apply to the causal relationship of treatment under the Act by reasons of the same statutory language.
[5] [2019] NSWCA 324
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Philips[6]. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear that s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the Act.
[6] [2018] NSWSC 1710 at (29)
REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
The claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the Act 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[7], Grove J stated[8]:
“22. I return to the expression “reasonably necessary” in s 60. Dictionaries stipulate that “necessary” as relevant definition as “indispensable, requisite, needful, that cannot be done without” – (shorter Oxford English Dictionary, 3rd Edition) and “that cannot be dispensed with” – Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what may be “reasonably necessary”, there is this statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.”
[7] [2003] NSWCA 52
[8] Clampett at (22) – (23), Meagher and Santow JJA agreeing
Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation[9].
[9] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113)
Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[10] They include:
(a) the appropriateness of particular treatments;
(b) the availability of alternative treatments;
(c) the costs of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[10] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88) (Diab)
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[11] The Panel adopts the examination findings and reasons of the medical assessors.
[11] Section 7.26(6) of the Act.
The Panel is satisfied that the mechanics of the motor accident are likely to have caused a soft tissue injury to the claimant’s neck as Dr Ong found.
Review of the medical record reveals no evidence of any ongoing neck symptoms after the cervical fusion surgery in 2017 up to the date of the subject motor accident. That is consistent with the claimant’s statement upon examination. The Review Panel accepts the claimant’s suggestion that her delay of some 9 to 12 days in reporting neck symptoms may relate to her pre-occupation with her lower back pain.
The Review Panel is not satisfied that the consultation with a neurosurgeon/neurologist was just a routine follow-up to the claimant’s prior surgery. The Review Panel finds no evidence that the consultation related to anything other than the motor accident.
We accept that the claim for a consultation with a neurosurgeon/neurologist for the cervical spine is both reasonable and necessary. Our conclusion is based on the examination findings of Medical Assessor McGrath and the medical expertise within the Panel that the proposed treatment is appropriate and could be effective.
The Review Panel is satisfied that the motor accident was more than a negligible cause of the claimant’s neck pain following the accident, The Review Panel also is satisfied that the accident aggravated the claimant’s previously asymptomatic underlaying cervical condition, giving rise to the various symptoms that were investigated following the accident.
For these reasons, the Review Panel accepts that the consultation with a neurosurgeon/neurologist, for the cervical spine, relates to the injury caused by the motor accident, and is reasonable and necessary, in the circumstances, as a matter of medical determination, and as a matter of factual non-medical determination.
In reaching their medical determination, the medical assessors have had regard to standard medical practice and exercised the entire gamut of their clinical experience and judgment.
CONCLUSIONS
For the above reasons, the Panel concludes that the certificate issued by Medical Assessor Rapaport on 31 October 2023 should be confirmed.
[DT1]Missing Word
0
6
0