QBE Insurance (Australia) Limited v Karhani
[2024] NSWPICMP 426
•2 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Karhani [2024] NSWPICMP 426 |
| CLAIMANT: | Aber Karhani |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 2 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver in a car that collided with another car; original assessment certified that a specified gym membership treatment relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances; Medical Appeal Panel’s opinion was that the subject motor accident caused the claimants physical injuries and aggravated her ongoing psychological impairments; a supervised gym exercise program would likely improve her physical condition, reduce her weight and help with her ongoing psychological impairments; the effectiveness of treatment and care should be measured against the Clinical Framework for the Delivery of Health Services and clause 4.76 of the Motor Accident Guidelines; clause 4.76 provides that treatment efficacy should be measurable, consider the whole person and their personal circumstances, empower the person to manage their recovery, and goal-focused specifically targeted at return to participation; Held – Original Medical Assessment Certificate is revoked; treatment and care by way of a gym membership is reasonable and necessary in the circumstances as it relates to the injury caused by the motor accident. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Andrew Webster dated (a) the following treatment and care of a: · gym membership, does relate to the injury caused by the motor accident. (b) The following treatment and care of a: · gym membership from 1 July 2024 to 30 June 2027, is reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
On 6 February 2019, Ms Aber Karhani (the claimant) was driving on Canterbury Road Roselands at the intersection of Rawson Street when her car was hit on her driver’s side by a car turning right from Rawson Street.
After the accident Ms Karhani was taken by NSW Ambulance to St Geroge Hospital. Her reported injuries included: right hip fracture, right ankle fracture, right pelvis, right shoulder, cervical spine whiplash, lower back and psychological injuries.
QBE Insurance (Australia) Ltd (the insurer) is the relevant insurer with liability to pay any damages to Mr Apostolov under the Motor Accident Injuries Act 2017 (MAI Act).
By email dated 5 July 2022 the insurer wrote to the claimant and advised the claimant that it would not fund a further F45 gym membership.[1]
[1] Insurer’s bundle A1.
On 8 July 2022, the claimant requested an internal review of the insurer’s decision. She wrote that: “Exercise helps me significantly and should be regarded as fair and reasonable based on mental health alone”.
On 21 July 2022, the insurer issued its Certificate of Determination and a Certificate of Reasons which affirmed its original decision that the request for a further F45 Gym membership is not related to an injury caused by the accident, nor is it reasonable and necessary in the circumstances.
On 4 October 2022, the claimant lodged an application with the Personal Injury Commission (the Commission) seeking an assessment to determine if the requested continuation of the F45 Gym membership is related to the motor vehicle accident and is reasonable and necessary in the circumstances.
Medical Assessor Andrew Webster issued a certificate dated 15 March 2023.[2] In that certificate he certified that the F45 Gym membership treatment relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter. A medical assessment matter includes, under cl 2 (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”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
On 11 April 2023 the insurer filed an application with the Commission seeking a Review Panel review of the certificate of Medical Assessor Webster.
ASSESSMENT UNDER REVIEW
[2] Claimant’s bundle AD 3 pp 12-17.
[3] Section 7.20 MAI Act.
The dispute was initially referred to Medical Assessor Webster who assessed Ms Karhani and issued a certificate dated 15 March 2023.[4]
[4] Insurer’s bundle A7
The injuries reported by Ms Karhani included: right hip fracture, right ankle fracture, right pelvis, right shoulder, cervical spine whiplash, lower back and psychological injuries.
Medical Assessor Webster was asked to assess whether the request for further F45 Gym membership relates to the injury caused by the motor accident and whether the request for further F45 Gym membership is reasonable and necessary in the circumstances.
Medical Assessor Webster medically examined the claimant on 1 March 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Webster asked the claimant about her medical history. He summarised a detailed medical history which is referred to later in these reasons.
Medical Assessor Webster also recorded the claimant’s previous and current body mass index (BMI) as:
(a) currently (2023): height 174cm, weight 118kg, BMI 39 (borderline morbidly obese);
(b) previous (when F45 Suspended 2022): height 174cm, weight 94kg, BMI 31 (mildly obese), and
(c) previous (before motor vehicle accident 2018): height 174cm, weight 80kg, BMI 26 (mildly overweight).
Medical Assessor Webster also commented that the claimant’s mental health status was not formally assessed. Note was made of the stated diagnosis of bi-polar disorder and the stated low mood, depression and anxiety that was indicated by scores on the DASS 21 (Depression, Anxiety, Stress Scale) inventory administered by the psychologist. Medical Assessor Webster noted the claimant’s score on the IES (Impact of Events Scale) which was consistent with post-traumatic stress disorder secondary to the subject accident. Medical Assessor Webster noted that the claimant did not dispute these diagnoses as stated in documentation.
Medical Assessor Webster decided that the request for further F45 Gym membership did relate to the injury caused by the motor accident and that the request for further F45 Gym membership was reasonable and necessary in the circumstances.
Medical Assessor Webster’s assessed the causation of the claimant’s injuries and stated that it is accepted that these injuries have resulted in movement and control impairments particularly in her legs and pelvis. These now manifest in tandem with mental health and body weight issues to present as impairments in physical tolerance and hence activity level. Medical Assessor Webster also noted that the claimant admits that she suffered pre-existing BPD and had some difficulties with managing ideal body weight.
Medical Assessor Webster referred to the evidence from a psychologist in 2021 there was a deterioration in claimant’s mental health with the claimant scoring in the severe range on the DASS 21 and on the IES (consistent with a diagnosis of post-traumatic stress disorder). This was attributed to the subject accident.
Medical Assessor Webster noted the claimant reporting that prior to the subject motor accident her body weight was 80kg. Subsequent to the accident the claimant has increased her body weight to 116kg. This is not disputed.
Medical Assessor Webster then states that despite the time since the accident it is reasonable to accept that there is ongoing physical and mental health effects as outlined.
Medical Assessor Webster then finds the claimant’s request for ongoing subsidy for F45 Gym membership is deemed reasonable and necessary in the circumstances but the terms of the F45 Gym membership are detailed by him.
The requirements of the gym program are set out in great detail in Medical Assessor Webster’s reasons. Medical Assessor Webster sets out a gym program for the claimant which included a prescriptive program of supervision and measurement. The program included: a six-month gym membership, baseline measurements to be carried out, requirements for the claimant to engage in the process and attend three times per week minimum, detailed review of the claimant’s measurements including BMI, seven consultations with an exercise physiologist, target setting for the claimant’s measurements, consultations with a dietician, claimant to sign an exercise contract and a review of the efficacy of the program at six months.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Webster was lodged on 12 April 2023 which is within 28 days of the date on which the certificate was made available to the parties.
On 15 June 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). The delegate’s reasons were that she accepted that the medical assessment was incorrect because the Medical Assessor had provided an extensive and detailed prescription on how the treatment is to be delivered in order for it to be considered remotely reasonable.
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.[5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] 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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of 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 directing that it intended to re-examine the claimant .
ASSESSING THE CAUSATION OF INJURIES
The complex issue of how medical assessors are required to assess the causation of injuries in a motor accident has been raised in the insurer’s submissions. The issue has also been 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)[8] his Honour Justice Wright stated at [35]:
[8] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
3.“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
4.6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
5.6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
6.'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:
7.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
8.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
9.This, therefore, involves a medical decision and a non-medical informed judgement.
10.6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
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),[9] 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.”
[9] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39] and [41],
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[10] 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.”
[10] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44],
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued Directions to the parties on 7 September 2023 requiring the parties to file written submissions and also requesting the claimant to attend for a re-examination by the Medical Assessors.
The Panel notes that each party had filed some submissions and documents.
The Panel also notes that the claimant was initially self-represented in this matter and then appears to have instructed solicitors who assisted by making an application to admit late documents dated 3 November 2023 attaching some documents and written submissions.
The Panel admits these late documents in the interests of justice pursuant to rule 67 of the Personal Injury Commission Rules 2021 and Procedural Direction PIC 3.
Police, ambulance and hospital reports
The claimant was taken by ambulance to St George Hospital but there are no police, ambulance or hospital notes produced by the parties to the Panel in this review. The Panel notes that some of these records were referred to in the insurer’s internal review.
Treating medical evidence
Pre-accident treating records
There were some limited medical records available for the claimant’s medical history prior to motor vehicle accident. Some of these medical records are referred to in the documents produced by both the claimant and the insurer. There are also summaries of some of the claimant’s pre-accident medical records and treatment which are referred to in the insurer’s internal review decision.[11]
[11] Insurer’s bundle A4 p 19 and A 5 pp 20-23.
There is also detail of the claimant’s medical history set out in the reasons of Medical Assessor Webster who asked the claimant and recorded her pre-accident medical history.
Medical Assessor Webster recorded the claimant’s pre-accident medical history as follows. Ms Karhani is a 44-year -ld lady, single mother to four children; an 18 year old son and 17 year old daughter who live full time with her, and 14 and 13 year old daughters who live 60% of the time with her now. The claimant has recently increased her proportion of care for the younger daughters. It was unclear why this occurred or was necessary. The claimant states that her son is self-sufficient, working full time at McDonalds and is reasonably helpful but that her daughters are more dependent, challenging, difficult and generally unhelpful around the house. The claimant states that she has recently assumed more of the caring role for her younger daughters and has therefore taken on a second residence out near Campbelltown as it is larger than the Revesby house.
The claimant told Medical Assessor Webster that she had been involved in two previous significant car accidents in 2003 and 2016. The claimant suffered a fractured right wrist in the 2003 accident but reports that she had no other injuries of note from either one. The claimant reported that she had no pre-existing musculoskeletal problems prior to the subject accident.
The claimant also told Medical Assessor Webster that she had pre-existing mental health diagnosis prior to the subject accident. She reported a diagnosis of bipolar disorder (BPD) in 2011. The claimant said that because of the subject accident her mental health had been negatively affected with increased levels of depression, anxiety and low mood and less stability of symptoms. The claimant reported that she had been under the care of the Bankstown Mental Health Team but had been discharged from active treatment due to stability of symptoms prior to the subject accident. The claimant also reported significant amounts of intervention from a psychologist both prior to and following the subject motor accident. The psychiatrist was Dr Casimir Liber and the psychologist Dr Helen Madigan.
The claimant reported to Medical Assessor Webster that she had been the subject of an involuntary admission due to a manic/psychotic episode for a period of eight weeks. This predated the subject accident.
The claimant acknowledged to Medical Assessor Webster that that she had a pre-existing body weight issue. She did report that her body weight BMI had fluctuated in the years 2013-2019 however she reported a significant and sustained increase in her BMI since being unable to function and exercise normally and also due to her low mood, depression and anxiety subsequent to the subject accident.
Post-accident treating records and insurer’s internal review of treatment
There are some limited medical records available for the claimant’s medical history after the subject motor vehicle accident. Some of these medical records are referred to in the documents produced by both the claimant and the insurer and also in the records cited by Medical Assessor Webster. There are also summaries of some of the claimant’s post-accident medical records and treatment which are referred to in the insurer’s internal review decision.[12]
[12] Insurer’s bundle A4 p 19 and A 5 pp 20-23.
The Panel notes that the insurer's internal review refers to an exercise participation agreement dated 23 November 2021 where the insurer agreed to fund an exercise participation plan involving an initial assessment, submission of an AHRR and exercise sessions with an exercise physiologist three sessions per week for six weeks.[13]
[13] Insurer’s bundle A5 pp 20-23.
The insurer’s internal review then expresses concern about the structure of the F45 Gym program because of its high intensity fast paced nature which would be outside the claimant's physical capacity.
The internal review then refers to an email from an exercise physiologist advising that the insurer would only fund group exercise classes under registered providers and run by qualified health professionals. The internal review notes that QBE did initially fund three month F45 Gym membership for the claimant before denying ongoing membership as not reasonable and necessary. The internal review are further notes that from the claimant's medical history she had been discussing her weight with her general practitioner (GP) as far back as 2013 and it was noted that she had long-standing psychological issues since 2011.
The insurers internal reviewer then states that she acknowledges that the claimant feels that she obtains benefit physically and especially psychologically from attending F45 Gym sessions. The internal review is not satisfied that the requirement for F45 Gym group training is a reasonable and necessary and relates to the injuries caused by the motor accident.
The insurer’s internal review wrote that she was not confident that the trainers who run the F45 Gym sessions are suitably qualified to ensure the injuries caused by the motor accident and that the proper safe techniques suited to the claimant's injuries are adhered to at all times during the sessions as their time is split across all participants in the class. The internal reviewer further wrote that to date (21 July 2022) the claimant had received 79 sessions of physiotherapy 16 sessions with her exercised psychologist and 34 sessions with a psychological treatment provider. The internal reviewer was satisfied that the insurer had been forthcoming in providing the claimant with adequate evidence-based treatment to date and that personal training sessions with Pure Results Personal Training are a safer option for the claimant to assist with her recovery from her injuries caused by the motor accident.
SUBMISSIONS
Insurer’s submissions
The insurer has provided written submissions dated 11 April 2023 and 26 October 2022.[14]
[14] Insurer’s bundle A1 pp 2-7and A 6 pp 24-31.
In the submissions dated 11 April 2023 the insurer‘s solicitors submit that Medical Assessor Webster’s reasoning was incorrect on the following basis:
(a) the Medical Assessor failed to demonstrate an actual path of reasoning in his finding of causation between the proposed treatment and the injuries sustained in the motor accident.
(b) The Medical Assessor failed to apply the requisite Guidelines and clinical frameworks to make determinations that are in accordance with the best available research.
(c) The Medical Assessor placed significant weight on the claimant’s psychiatric injuries, a determination that is wholly outside of the Medical Assessor’s specialties.
The insurer submits that demonstrating an actual path of reasoning between the proposed treatment and the injuries sustained in the motor accident would firstly involve establishing a causal relationship between the occurrence of the subject accident and the injuries suffered by the claimant. Medical Assessor Webster failed to adequately outline, or even consider, was how the requested treatment could improve the claimant’s physical injuries. Medical Assessor Webster provided no evidence that the F45 Gym membership was requested or recommended by any of the claimant’s treatment providers to treat the injuries sustained at the subject accident.
The insurer contends that Medical Assessor Webster has failed to provide a causal nexus between the occurrence of the subject motor accident, the claimant’s injuries and symptoms and the requested treatment. The parties are left to attempt to decipher whether her self-reported increase in body weight is causally related to the subject accident and whether the F45 treatment would actually improve her injuries.
The insurer argues that when determining whether the treatment was reasonable and necessary, the Medical Assessor failed to adequately apply the Motor Accident Guidelines (the Guidelines). Instead, he has provided an extensive and detailed prescription on how the ‘treatment’ is to be run in order for it to be considered remotely reasonable.
The insurer submits that had the Medical Assessor applied the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services (the Framework), which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services (cl 4.80 of the Guidelines), the Medical Assessor would have concluded that the treatment requested is not demonstrably effective, nor would it empower the claimant to manage her recovery. The Framework stipulates that a fundamental tenet of the first requirement being to “measure and demonstrate the effectiveness of the treatment”, is that the treatment must result in a measurable benefit to the claimant.
The insurer submits that Medical Assessor Webster’s failed to show his actual path of reasoning in his determination that the proposed treatment is causally connected to injuries sustained by the claimant in the subject accident.
The insurer submits a second ground for review is that Medical Assessor Webster failed to adequately apply the Guidelines. Instead, he has provided an extensive and detailed prescription on how the ‘treatment’ is to be run in order for it to be considered reasonable.
The insurer also refers to clause 4.76 of the Guidelines which provides that treatment efficacy should be: measurable; consider the whole person and their personal circumstances; empower the person to manage their recovery; and goal focused specifically targeted at return to participation.
The insurer’s submissions then set out is some detail all of the substantial number of baseline measurements required by Medical Assessor Webster be carried out and then reviewed at two, four and six months.
The insurer then suggests that the Medical Assessor believed that by subjecting the claimant to these excessive conditions, it would be possible to “demonstrate objective change on specific measurable variables”.[15] To the contrary, given that the Medical Assessor requested that the claimant attend upon an Exercise Physiologist and a Dietitian, it would be impossible to conclude that any demonstratable improvements in the claimant’s condition were the result of F45 Gym sessions and not the result of clinical treatments.
[15] Insurer’s bundle A7 pp 14-15.
The insurer notes that the Medical Assessor has also requested that the claimant sign an exercise contract and provide evidence that she has attended F45 three times per week. Requesting that the claimant sign a contract does not in any way empower the claimant to manage her own recovery as required by the Guidelines. This strict treatment plan set out on pages 14 and 15 of the certificate clearly indicates that this treatment requires close, meticulous, and careful implementation in order for it to be considered even remotely reasonable. The insurer submits that by approving the F45 Gym treatment and then qualifying his approval by prescribing such extensive and specific instructions, the Medical Assessor has made a material error in accordance with s 7.26 of the MAI Act.
The insurer submits that the Medical Assessor was not appropriately qualified to conclude that the treatment is reasonable and necessary to treat the claimant’s psychological condition. The Medical Assessor’s primary reason finding that F45 Gym would be a viable treatment modality was that:
15.“…it is accepted that these injuries have resulted in movement and control impairments particularly in her legs and pelvis. These now manifest in tandem with mental health and body weight issues to present as impairments in physical tolerance and hence activity level”.[16]
He went on to say that the claimant has suffered from pre-existing BPD and has had some difficulty with managing body weight.
[16] Insurer’s bundle A7 p 13.
The insurer argues that ability of Medical Assessor Webster to comment on the claimant’s psychological impairment and symptoms falls well outside the scope of the Medical Assessor’s expertise as a specialist Musculoskeletal Physiotherapist.
The insurer has also provided written submissions dated 26 October 2022.[17] Much of these submissions relate to the issue of a Treatment Dispute about further domestic assistance beyond 1 August 2022 which is not relevant to these review proceedings.
[17] Insurer’s bundle A6 pp 24-31.
In these submissions the insurer argues that based upon review of the contemporaneous medical evidence, the request to fund a further F45 Gym membership does not relate to an injury caused by the motor accident and is not reasonable and necessary in the circumstances for the purposes of s 3.24 of the MAI Act.
The insurer argues that it appears illogical how the requested F45 Gym sessions would have the desired effect of facilitating recovery and minimising the risk of persistent pain, when it is apparent that such treatment is likely to cause aggravation of her pain and discomfort.
The insurer argues that in the claimant’s case, taking into consideration the “best available research”, would involve analysing and determining whether the requested F45 Gym membership is consistent with the reported limitations stipulated in the most recent Certificate of capacity dated 26 May 2022. This certificate limits the claimant’s capacity for lifting/carrying/ pulling/ pushing load 5-8kg, standing to 10-15 minutes, bending/twisting limited to a “regular” manner and driving limited to short distances for health related appointments or suitable work.
The insurer notes that F45 Gym was not mentioned in her most recent Certificate of capacity as a required treatment and there has been no formal referral or agreeance provided by the claimant’s GP that indicates F45 Gym is an appropriate gym for her to attend.
The insurer questions that if the provision of further F45 Gym sessions is unable to promote principles one, two and five of the Framework, which are acknowledged in clause 4.76 of the Guidelines, then it is clear that such treatment cannot be considered reasonable and necessary in the circumstances in accordance with s 3.24 of the MAI Act.
The insurer refers to the claimant’s medical history indicates that she had been discussing her weight with her GP since 2013, and it is also noted that she had been experiencing long standing psychological issues as far back as 2011. The Activities of Daily Living Assessment report dated 24 May 2022 noted that the claimant had stated that prior to the subject accident, she was diagnosed with BPD, with periods more of mania and mentioned experiencing these episodes on average twice per year.
The insurer acknowledges the claimant may feel that she obtains benefit physically and especially psychologically attending F45 Gym sessions. The insurer then says there is significant uncertainty pertaining to whether the requirement for F45 Gym group training can be considered a reasonable and necessary request which is related to the injuries caused by the subject accident. The insurer also has concerns in relation to whether the trainers who run the F45 Gym sessions are suitably qualified to ensure the injuries caused by the motor accident are taken into consideration and that proper, safe techniques tailored to her injuries are adhered to at all times during the sessions, as their time is split across all participants in the class.
The insurer submits that taking into consideration the above, the Insurer submits that the claimant’s requests for a further F45 Gym membership is not reasonable and necessary in the circumstances, nor related to an injury sustained in the subject accident, pursuant to s 3.24 of the MAI Act.
Claimant’s submissions
The claimant’s solicitors provided written submissions dated 3 November 2023.[18]
[18] Claimant’s bundle of late documents.
The claimant's response to the insurer submissions is that there is evidence of the claimant's increasing BMI and body weight and also the adverse impacts it is having upon her mental health. The claimant points to the certificate of Medical Assessor Webster dated 15 March 2023 which states that there is no dispute that the claimant's body weight has increased to 116 kg after the accident where her weight prior to the accident was 80kg.
The claimant submits that Medical Assessor Webster did have available to him evidence from the claimant's treating psychiatrist Dr Helen Madigan. This evidence establishes a direct causal connection between the recommended treatment and the injuries which supported his reasoning that the subject motor accident contributed to her psychological injuries and increased body weight.
In accordance with clause 4.76 of the Guidelines the F45 Gym membership is an effective way for the claimant to manage her recovery, address a weight loss and improve her mental health.
The claimant disagrees with the insurer's submissions that the F45 Gym membership would be likely to be both harmful and ineffective as a form of treatment the claimant's injuries. The claimant submits that the F45 Gym membership offers a wide range of exercises including with low impact options that can be tailored to suit the claimant's individual circumstances. The claimant could work closely with fitness professionals to tailor her exercise program to emphasise weight loss and overall fitness without the need to engage in heavy lifting or bending which may detrimentally affect her current physical injuries and condition.
MEDICAL EXAMINATION
Details of who attended the assessment
Ms Karhani attended the Commission’s rooms on 25 September 2023. The assessment and examination was conducted by Medical Assessor Michael Couch. The clinical assessment took one hour. Ms Karhani attended alone.
At the start of the interview, Ms Karhani explained that she was currently managing the Commission’s process herself and did not have a solicitor. She explained that prior to the subject accident in 2019 she had been very fit and physically active, attending an F45 Gym regularly. She said that she had put on 30 or 40kg since the accident and very much wanted to lose weight and get back to her previous level of fitness and activity.
Pre-accident medical history and relevant personal details
Ms Karhani said that her family came from Lebanon and she was born in Sydney. She said that her father had moved around a lot and she described some family problems and trauma. She has been living in a Housing Department home in Revesby for the past 12 years. She said that she had always been very physically active.
As noted in Medical Assessor Webster’s certificate of 15 March 2023, she had sustained a fracture of the right wrist in a motor vehicle accident in 2003. This had been treated with closed reduction and she described full recovery.
She said that prior to the subject accident she was very fit and weighed between 80 and 90kg. She was attending the F45 Gym five or six times per week, doing 45-minute classes. She described herself as having been “one of the strongest in the room” and “going home with lots of energy”. She said that she started a de facto relationship in approximately 2003; she now has four children. She has a son aged 19 and three daughters aged 18, 14 and 13 years, who all live at home.
Medical Assessor Michael Couch noted that Medical Assessor Webster on page 5 of his certificate described her daughters as being somewhat difficult and unhelpful around the home . When Ms Karhani arrived she complained that her 18-year-old daughter had dropped her off, and then “gone off to do her own thing”. She thought she might need to take an Uber to Central Station to get a train home after the assessment. Ms Karhani said that she had been single and living with her children in the home in Revesby for the past 12 years.
She went on to attribute some of her previous weight gain to psychiatric treatment, describing herself as “a guinea pig for the mental health system”. When I asked her about formal diagnoses, she mentioned “schizophrenia, bipolar disorder, manic depression, psychosis…”. She said that she had had multiple psychiatric admissions, the last being about four years earlier.
She went on to say that her treating psychiatrist, the mental health team and she had worked out that she was generally better without medication. She said that symptoms are triggered by lack of sleep and stress. She said that when she becomes sick, “I stop giving a shit about anything – hygiene, etc.” She denied actual hallucinations or delusional thinking. She said that her illness had been very hard on her children. She now takes the atypical antipsychotic Seroquel on an as-needs basis.
When asked about her about employment, she replied that she had “always been a hustler”. She described some self-employed work, including importing goods from China and then selling them. Prior to the accident she was working as a carer for the National Disability Insurance Scheme (NDIS) clients, doing about 18 hours per week. She said that currently she is mostly doing domestic cleaning, including end-of-lease cleans of rental properties for real estate agents. She said that she had people working for her.
History of the motor accident
Ms Karhani said that at 12.30am on 6 February 2019, she was alone, driving home from the Canterbury Leagues Club in her 2016 Honda Civic. She was driving along Canterbury Road when a car came out from a side road to her right and “T-boned” her vehicle, striking the driver’s door. She was wearing a seatbelt and airbags activated. She said that her car flew into the air and spun round. After the crash she was unable to get out of the vehicle and said that she lost all feeling in her lower limbs. She had to be cut out of the car by emergency services and was taken by ambulance to St George Hospital. She said that her car would have been written off if it had been insured, but she did not have insurance and sold the wreck.
History of symptoms and treatment following the motor accident
Ms Karhani was treated as an inpatient at St George Hospital for serious injuries, including a fracture of the right hip and acetabulum with central dislocation through the acetabular wall, requiring open reduction and internal fixation (ORIF), fracture of the right ankle and medial talus treated conservatively, and injuries to the right shoulder, whiplash injury to the cervical spine and injury to the back. Her pre-existing psychiatric condition was exacerbated. She had subsequently been treated by her GP, Dr Sam Adie, treating orthopaedic surgeon, physiotherapist and occupational therapist, and had also had exercise programs.
Ms Karhani went on to say that she was previously represented by J P Law (I note that since my examination of her, she has again become represented). She also said that a whole person impairment (WPI) of over 20% had been agreed between the parties and that she had received lump sum compensation of approximately $500,000. Later in the assessment, she said that she now only had $100,000 left of this settlement. She commented, “if I had got it now, I would have a lot more left”. She did not give further details.
Describing her exercise program since the injury, she again said that she had been attending an F45 Gym prior to the accident (she explained that the 45 refers to spending 45 seconds at each station in a circuit). I understood that she went back to the F45 Gym as part of her rehabilitation, but found it hard to keep up with others in the class, stating “I felt it was risky. I was too slow for the group training.” She then changed to BCHP in Panania, saying that they had a more flexible program and she found this much better and could pace herself, making allowance for her residual symptoms, increased weight and reduced fitness.
Ms Karhani said that recently she had moved to a third gym (9 Round in Waterloo). She described attending classes three times a week, spending three minutes at each exercise station in a circuit. She is paying for this herself. She said the actual exercises were similar to those she had done at F45 Gym and she felt the type of exercise was very good for weight loss.
Current symptoms
Ms Karhani describes these relatively briefly, including:
(a) knees – she said that she could not squat or lunge fully and does not feel stable;
(b) feet;
(c) right hip – she described some residual pain in the groin but described this as “the least of my problems”, and
(d) right ankle – she described this as “always inflamed and it swells”. It gets sore if she does home exercises.
Physical examination
Ms Karhani attended alone. She presented as a quite heavily-built, generally healthy-looking woman, at height 168cm and weight 116kg (this gives a calculated BMI of 41) – in the markedly obese range. The upper limit of the healthy weight range (BMI 25) for her would be 71kg but her reported weight of 80kg prior to the accident would be quite acceptable, given her fairly heavy and muscular build.
Ms Karhani was wearing a top and tights and sandals. She was very talkative, tending to give some extraneous information, but there was no evidence of disordered thought content. She became tearful at times. She showed slightly impulsive behaviour – for example suddenly getting off the couch before the examination of her lower limbs had finished.
She walked into the examination room with a normal gait. She was able to sit during our interview and had no difficulty climbing on and off the examination couch.
Cervical spine
Posture of the cervical spine was within normal limits. She reported no tenderness to palpation. There was a full painless range of flexion and extension. Rotation was full to the right, but two-thirds of normal to the left and apparently painful (thus there was some dysmetria).
Back/spine
Posture of the lumbosacral spine was within normal limits. While standing, Ms Karhani was able to demonstrate approximately three-quarters full normal range of movement in all planes, with slight pain reported.
Upper extremities
Hands were clean and soft without callouses, and grip strength was normal bilaterally. The upper limbs were normal in appearance. On examining the shoulders, she demonstrated approximately three-quarters range of all active movements in both shoulders – interestingly she complained of low back pain during this testing rather than shoulder pain.
Pelvis
There was a scar over the right lateral hip which was quite faint. While I was examining this, she commented “I paid thousands to fix it”. She said that she had had fat injected to the area and now felt better about it.
Lower extremities
Ms Karhani was checked for any leg length asymmetry – with Ms Karhani standing with knees straight, the iliac crests were at equal levels, suggesting no significant asymmetry.
Apart from scarring over the right lateral hip, both lower limbs were normal to inspection. Active range of movement (AROM) of the hips was carefully measured with a goniometer with Ms Karhani lying on the couch, as tabulated.
Right Left Flexion 100° 100° Extension 10° 10° Abduction 30° 40° Adduction 20° 20° Internal Rotation 20° 30° External Rotation 30° 40°
Ms Karhani described some pain in the right groin at the limits of right hip movements.
Ms Karhani described some pain in the right groin at the limits of right hip movements.
Both ankles measured equally in circumference around the malleoli at 28cm. There was no tenderness to palpation around either ankle. There was a full AROM in both ankles and hindfeet (subtalar joints).
Medical Assessor Couch observed a few functional activities. In bare feet, Ms Karhani could take a few steps on the carpeted floor of the examination room on her tiptoes and then on her heels (she complained of some pain in the soles of her feet afterwards). She was not keen to perform a squat because of anticipated pain . Medical Assessor Michael Couch did not ask her to do this. She was able to balance on either foot – she was slightly unsteady but could manage this. Balance tested by Romberg’s test (standing to attention with eyes closed) was normal. On a tandem walk (walking in a straight line, heel to toe), she was slightly unsteady.
Panel’s conclusions after examination
Medical Assessor Michael Couch found Ms Karhani somewhat difficult to assess because she was very talkative and somewhat impulsive. There appeared to be a strong psychological component to her presentation. Given her self-reported psychiatric history and the serious injuries sustained in the subject crash, Medical Assessor Michael Couch considered that she had done well to get back to gainful employment and to keep her family together as a single mother.
She had clearly been involved in a serious crash in which she was trapped in her vehicle. The most serious injury was the fracture of the right acetabulum requiring ORIF. On re-examination by Medical Assessor Michael Couch Ms Karhani only had slight pain in the right hip with minor restriction of AROM. It seems likely that she will develop premature osteoarthritis in the right hip at some time in the future, particularly having put on 30kg or more since the accident.
She made a good recovery from a fracture of the right ankle with no residual signs.
Although she was not actively complaining of neck pain, there was some dysmetria with discomfort on examination of the cervical spine, consistent with whiplash associated disorder 2 (WAD2).
Ms Karhani presented as very well-motivated to continue with her exercise-based rehabilitation and to get back to or close to her previous high level of fitness, and also to lose weight. About 80kg or 90kg would be an acceptable goal for her at present. Although psychotropic medication (particularly antipsychotics) may well have contributed to weight gain in the past, it appears that “but for” injuries sustained in the subject accident, she would not have put on some 30kg.
The Panel consider that supervised exercise (which from the history clearly suits her and she finds motivating) is definitely indicated both in relation to further functional recovery following her serious injuries, and reduction of the weight she has put on since the accident.
CAUSATION AND TREATMENT DISPUTE
The Panel has carefully reviewed the detailed submissions made by the insurer and claimant. It has paid particular attention to the insurer’s submissions about the causation of the injuries and whether the proposed treatment of the gym membership would be effective for the claimant’s treatment and care. The Panel has also carefully considered insurer’s argument against the proposed treatment and care of the gym membership because is not in accordance with clause 4.76 and clause 4.80 of the Guidelines and the Framework. The insurer argued that it is difficult to meet those requirements to measure and demonstrate the effectiveness of the treatment.
The Panel notes that the claimant had two prior car accidents claimant. She told Medical Assessor Webster that she had been involved in two previous significant car accidents in 2003 and 2016 but denied that any significant ongoing physical injuries or disabilities.
The Panel notes that the insurer’s internal review notes that the insurer did initially fund three month F45 Gym membership for the claimant before denying ongoing membership as not reasonable and necessary. The insurer’s internal review expressed concerns about the structure of the F45 Gym program because of its high intensity fast paced nature which would in her opinion, be outside the claimant's physical capacity. The insurer’s internal review also refers to the claimant having reported weight issues since 2013 and mental health issues since 2011.
Accordingly it seems that the insurer at least initially recognised the benefits of an exercise and gym program for the claimant, approved three months at an F45 Gym and then resiled from that approval. The insurer expressed concerns about the high intensity and fast paced nature of the program which then in the insurer’s opinion made it not reasonable and necessary. It also seems from the internal review that the insurer was willing to continue some funding of an appropriate exercise program with personal training sessions with Pure Results Personal Training as a safer option for the claimant.
The Panel also notes that the claimant reported to the Panel at the re-examination and also told Medical Assessor Webster that she had pre-existing mental health diagnosis prior to the subject accident. She reported a diagnosis of BPD in 2011. The claimant said that because of the subject accident her mental health had been negatively affected with increased levels of depression, anxiety and low mood and less stability of symptoms. The claimant reported that she had been under the care of the Bankstown Mental Health Team but had been discharged from active treatment due to stability of symptoms prior to the subject accident. The claimant also reported significant amounts of intervention from a psychologist both prior to and following the subject motor accident. Her psychiatrist was Dr Casimir Liber and the psychologist Dr Helen Madigan.
First dealing with the issue of causation of the claimant’s injuries. Based on the available evidence the claimant’s post-accident condition was that she had some ongoing physical disabilities. Her body weight and BMI and also her psychological condition and mental health fluctuated. Relying upon the medical history given by the claimant and some of the documentary evidence, the Panel’s opinion is that the subject motor accident caused her a number of serious physical injuries and ongoing impairments. These ongoing physical injuries contributed to her poor mental condition and both her physical injuries and mental condition contributed to her weight gain. Having regard to the cases referred to above in these reasons the Panel cannot rule out that the motor vehicle accident aggravated the claimant’s prior psychological impairments and caused her physical impairments resulting in an increase in weight gain and reduced ability to care for herself.
The subject motor vehicle accident was a cause of the continuing exacerbation of these pre-existing psychological impairments diagnosed by her treating doctors. Her physical and psychological impairments have contributed to her anxiety and depression which also contributed to her weight gain. Were it not for the subject accident, it is not likely that Ms Karhani would have stopped exercising and gained weight as she did. Therefore the subject accident cannot be ruled out as a cause more than negligible resulting in the need for treatment and care of gym membership to facilitate her weight loss and physical strengthening and rehabilitation. In the Panel’s clinical judgment a weight loss and supervised exercise program will also contribute to an improvement of her ongoing physical injuries and disabilities affecting her knees, hips, right ankle and feet which were injured in the subject accident.
Regarding the insurer’s second argument against the proposed treatment and care of the gym membership because is not in accordance with clause 4.76 and clause 4.80 of the Guidelines and the Framework as it is difficult to meet those requirements that to measure and demonstrate the effectiveness of the treatment.
In an apparent attempt to comply with the requirements of the Guidelines Medical Assessor Webster designed an extensive, detailed and prescriptive program on how the gym program was to be conducted and results measured and monitored. If the treatment complied with these requirements of the Guidelines his view was that it could be considered reasonable.
In this case the Panel does not support an overly prescriptive approach. In this case the claimant has a long and continuing history of psychological impairment and continuing effects of physical injuries and impairments caused by the subject motor accident. Because of the ongoing effect of her injuries the claimant has also experienced difficulties in managing her weight and maintaining her physical fitness. In the Panel’s opinion and clinical judgment in the claimant’s situation all these factors interact . These factors influence each other and cannot be effectively treated individually or in isolation. Simply following only parts of the Guidelines and only measuring any weight loss to assess the effectiveness of any treatment is not appropriate in her case. As provided for in the Guidelines any treatment must consider the whole person and their personal circumstances. Any treatment and care must be able to accommodate her psychological impairments together with her physical impairments and weight gain.
As provided for in clause 4.76 of the Guidelines, treatment efficacy should be: measurable; consider the whole person and their personal circumstances; empower the person to manage their recovery; and goal focused specifically targeted at return to participation. In the Panel’s opinion a supervised gym program for the claimant would satisfy these requirements in the Guidelines in particular empowering the claimant to manage her recovery.
In the Panel’s opinion, and considering the whole claimant and her personal circumstances, a gym membership is reasonable and necessary. However, given the claimant’s diagnosed psychological impairments, to be effective the gym membership cannot be overly prescriptive or structed. If the claimant’s personal circumstances had been different and she did not have psychological impairments the Panel may have required more prescriptive measuring and reporting about the claimant’s progress. However in her case because of her acknowledged psychological impairments such an approach is not clinically appropriate or indicated.
Having thoroughly examined the claimant and reviewed her medical history and the medical documentation the Panel’s medical opinion is that the claimant’s physical injuries appear to be stabilising and improving. In the Panel’s clinical judgment it would expect her injuries to further improve and possibly resolved within five years. The Panel also notes the claimant had previously lived or travelling between two homes. The claimant also reported to Medical Assessor Couch that she had attended three gyms in the past. So in order to allow her flexibility as to which gym to attend the Panel has not specified which gym and what program she should enrol in and pursue. Because the Panel expects her injuries to further improve and possibly resolve within three years the Panel has limited the gym membership to a maximum period of three years. Because the Panel notes that the claimant moves between homes and gyms it has and not specified which gym or which location she should attend.
The Panel would expect the claimant to provide reports from her gym to the insurer about her progress and also provide regular certificates of capacity from her treating GP to the insurer confirming the ongoing need and effectiveness of the gym membership and any weight control program supported by the gym membership.
Proposed treatment and care
The Panel’s conclusion is that the proposed by gym membership is reasonable and necessary in the circumstances of the claimant’s case and does relate to the injuries caused by the motor accident.
In this claimant’s case, the Panel is satisfied that the proposed treatment and care relates to the injuries caused by the motor accident. As discussed in paragraphs above.
Reasonable and necessary in the circumstances
In this 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,[19] Grove J stated:[20]
“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.”
[19] [2003] NSWCA 52 (Clampett).
[20] 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.[21]
[21] 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.[22] 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.
[22] 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.[23] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[23] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[24] 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.
[24] [2018] NSWSC 1710 at [29] (Phillips).
The Panel accepts that the claimant’s received a number of physical and psychological injuries caused by the motor accident including whether by way of aggravation of pathology or exacerbation of symptoms. Accordingly, the Panel accepts that the treatment of a gym membership would improve her physical and psychological condition and help address her weight gain and so relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances.
In reaching its conclusions about the causation of the claimant’s injuries the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is satisfied that the subject motor vehicle accident materially contributed to the claimant’s physical and psychological injuries or caused or exacerbated such injuries.
Regarding the treatment and care dispute the Panel’s conclusion is that the subject motor vehicle accident caused, aggravated or exacerbated the claimant’s physical and psychological injuries. The motor vehicle accident was a substantial contributing factor to claimant’s physical and psychological injuries and were causally related to the subject motor vehicle accident. The treatment and care of a gym membership is reasonable and necessary.
CONCLUSION AND CERTIFICATION
For the above reasons the Panel revokes the certificates issued by Medical Assessor Webster.
The proposed treatment and care of gym membership does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances.
The new certificate is attached at the commencement of these reasons.
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