QBE Insurance (Australia) Limited v Kumar

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Kumar [2023] NSWPICMP 371
CLAIMANT:	Ajay Kumar
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	3 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a driving a car that was hit by a small truck in a rear end collision; claimant reported injuries to all levels of the spine; request made for consultation with neurosurgeon; Medical Assessor approved consultation as reasonable and necessary; Held – original Medical Assessment Certificate set aside; claimant not medically re-examined by Panel; claimant’s proposed treatment and care of a consultation with neurosurgeon not reasonable and necessary in the circumstances; all of claimants reported injuries and spinal symptoms were soft tissue injuries and thus threshold injuries; CT scans, X-Rays and MRI scans all show chronic degenerative changes to the spine including disc bulging but no fractures or nerve root compression; no definite evidence of radiculopathy.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor James G Bodel dated 28 June 2022 and issues a replacement certificate determining that: 1. The following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • cervical spine – soft tissue injury; • thoracic spine – soft tissue injury, and • lumbar spine – soft tissue injury. 2. The following treatment and care of a: · medical consultation with Dr Gambhir, neurosurgeon, for lumbar spine; is not reasonable and necessary in the circumstances. . .

STATEMENT OF REASONS

INTRODUCTION

On 15 October 2020 Mr Ajay Kumar (the claimant) was driving on the Great Western Highway, Parramatta, NSW near the Church Street exit ramp. Mr Kumar reports being in heavy traffic and driving at about 40 kmph when he was hit from behind by a delivery truck.
Immediately after the accident, Mr Kumar and parked in a side street. Police and ambulance did not attend the accident scene. His vehicle was towed away and subsequently written off by the insurer.
After the accident Mr Kumar continued on his way to work. At work he developed neck and lower back pain. He went to consult his general practitioner (GP) and was told he had a whiplash injury and was given medication for the pain. He was initially off work for three days and then went back to work.
In the Application for Personal Injury Benefits dated 17 October 2020 Mr Kumar stated he started to feel a sharp pain in his neck and upper back and lower back at around midday on the day of the accident.[1]
[1] Insurer’s bundle AD p 30.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Kumar under the Motor Accident Injuries Act 2017 (MAI Act).
The insurer decided that the lumbar spine injury was a minor injury and that the proposed medical consultation with Dr Gambhir was not reasonable and necessary. The claimant sought an internal review of these two decisions. The insurer determined its internal review decision on 8 March and 12 March 2021.[2] The outcome of the internal reviews was that the minor injury determination was confirmed and that the proposed review by the neurosurgeon Dr Gambhir was determined to be not reasonable and necessary.
[2] Claimant’s bundle AD2 pages 16 to 21.
The claimant sought a medical assessment of his spine and the proposed review by the neurosurgeon Dr Gambhir.
Medical Assessor James Bodel issued a certificate dated 28 June 2022. In that certificate he certified that the injuries sustained by Mr Kumar to his cervical and thoracic spine were a minor injury for the purposes of the MAI Act. Medical Assessor Bodel also certified that the injury to Mr Kumar’s lumbar spine was not a minor injury for the purposes of the MAI Act.[3] Medical Assessor Bodel also certified that the treatment and care for a medical consultation with Dr Gambhir for the lumbar spine is reasonable and necessary in the circumstances. Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
[3] Insurer’s bundle AD p 7.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[4]
[4] Section 7.20 MAI Act.
On 25 July 2022 the insurer filed an application with the Personal Injury Commission (the Commission) seeking a Panel review of Medical Assessor Bodel.
ASSESSMENT UNDER REVIEW
The dispute was initially referred to Medical Assessor Bodel who assessed Mr Kumar and issued a certificate dated 28 June 2022.[5]
[5] Insurer’s bundle AD p 30.
The injuries referred for assessment included: cervical spine, thoracic spine and lumbar spine. A treatment and care dispute was also referred to Medical Assessor Bodel.
Medical Assessor Bodel medically examined the claimant on 22 April 2022. 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 Bodel examined the claimant’s cervical spine, thoracic spine and lumbar spine. He found that Mr Kumar’s cervical spine to have a good range of neck flexion, extension and rotation in all directions. He found no reflex abnormality nor wasting no weakness and no signs of radiculopathy in the upper limbs. Medical Assessor Bodel also found a good range of bending and rotation in the thoracic spine. Regarding the lumbar spine, Medical Assessor Bodel found on examination tenderness over the lower part of the back, pain at flexion and extension. Straight leg raising limited to 70°. No measurable muscle wasting. No clinical signs of definite radiculopathy in the lower limbs.
Medical Assessor Bodel’s diagnosis was that Mr Kumar has suffered a soft tissue whiplash associated disorder in the cervical spine which is a minor (threshold) soft tissue injury. Mr Kumar has a minor soft tissue ligamentous injury to the thoracic spine. Mr Kumar has a probable internal disc disruption at the L4 /L5 disc in the lumbosacral region that has caused damage to the cartilaginous endplate confirmed in the MRI scan. The injury to the lumbar spine was found by Medical Assessor Bodel to be a non-minor injury (now known as a nine threshold injury).
Medical Assessor Bodel found that the following injuries were caused by the motor accident:
•      cervical spine injury;
•      thoracic spine injury, and
•      lumbar spine injury.
Medical Assessor Bodel found that the referral for a medical consultation with Dr Gambhir was reasonable and necessary in the circumstances.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Bodel was lodged within 28 days of the date on which the certificate was made available to the parties.
On 14 October 2022, 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 the Medical Assessor had not provided or set out a path of reasoning that led to his opinion that the lumbar spinal injury is not a minor injury for the purposes of the MAI Act.[6]
[6] Insurer’s bundle AD p 5. Note the decision in AAI Limited v Fitzpatrick [2015] NSWSC 1108 where it was held [at 30] that: “The conclusions expressed in the certificate must then be explained by the assessor in the accompanying statement of reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved”.
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.[7] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[7] 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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
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 a Direction to the parties dated 7 December 2022 requiring each party to file an indexed, paginated bundle of documents. That Direction also advised the parties that the Panel had decided not to re-examine the claimant. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents.[10]
[10] Insurers bundle AD 1 dated 22 December 2022 and claimant’s bundle AD 2 dated 30 March 2022.
The Commission wrote to both parties on 25 July 2023 noting that they had not specifically responded to the Panel’s Direction to the parties dated 7 December 2022 that the Panel had decided not to medically re-examine the claimant. The Commission wrote and advised that the Panel have requested confirmation from the parties that there are no objections to the Panel determining this matter without a re-examination as stated in their Direction. Neither party responded to the Commission’s request for confirmation about the re-examination of the claimant.
On 26 July 2023 the claimant’s solicitors replied to the Commission’s message as follows:
“Today, we received the insurer's post 26 weeks liability notice, accepting the claimant has suffered a Non Threshold injury. We understand a decision is no longer required by PIC.”
On 26 July 2023 the insurer’s solicitors replied to the Commission’s message as follows:
“The insurer accepted liability in the statutory benefits claim to align itself with the decision of Assessor Bodel, however the insurer’s lodgement of a review application was and remains indication that the insurer does not agree with the determination of Assessor Bodel. In the circumstances, the insurer requests the review application to proceed. If the Review Panel ultimately overturns the decision of Assessor Bodel, the insurer is not prevented from subsequent denial of liability (section 6.19(5) of the Act). “
Responses received from the claimant and the insurer the panel decided to complete its review.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d)     a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine Clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[11] his Honour Justice Wright stated at [35]:
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
2.“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
3.6.5     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.
4.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
5.'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:
6.1.        The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
7.2.        The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
8.This, therefore, involves a medical decision and a non-medical informed judgement.
9.6.7     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.”

EVIDENCE BEFORE THE REVIEW PANEL

Application for Personal Injury Benefits
The application for personal injury benefits is dated 17 October 2020.[12] The claimant described his injuries in the form as follows:
“After the accident, I started feeling sharp pain in my neck, upper back and lower back in around midday.”
Police report
The police report was made late on 9 November 2020.[13] The police report describes the circumstances of the accident. The report records that on 15 October 2020 both drivers were driving on the M4 motorway approaching the Church Street Parramatta exit ramp when the driver of a Nissen white truck collided with the white Mitsubishi sedan causing damage to both vehicles.

Treating medical evidence
Pre-accident treating records
[12] Claimant’s bundle AD2 p 74.
[13] Claimant’s bundle AD2 p 75.

There were few medical records available for the claimant’s medical history prior to motor vehicle accident as he had only arrived in Australia as a student recently.
Post-accident treating records
A report dated 24 November 2020 was made by his treating physiotherapist at Penrith Physiotherapy, Tim Cathers.[14] He notes that Mr Kumar has been attending physiotherapy for his neck and back pain. Whilst his functional outcome measures are improving… his pain experience has been worsening. Mr Cathers commented that Mr Kumar’s subjective reporting does not coincide with the objective measures.
[14] Claimant’s bundle AD2 p 50.
There are numerous certificates of capacity available from Dr Hussain who is the claimant’s treating general practitioner.[15] The certificates are variously dated from late 2020 to early in 2021. The early certificates certify that the claimant is unfit for work. The latter certificates certify that the claimant is fit for work for eight hours per day six days per week with lifting, carrying and pushing pulling restrictions of less than 5kg.
[15] Claimant’s bundle AD2 pp 96 to 121.
Medico-legal reports and other reports
Many of the medico-legal and radiology reports are summarised in the below section headed review of radiology. Set out immediately below are a number of other relevant reports.
Doctor support program.
The claimant's treating doctor, Dr Hussain, was spoken to by a doctor support program report dated 10 December 2020.[16] Dr Hussain stated that Mr Kumar's neck and shoulders are improving. Dr Hussain noted that the claimant still had some ongoing low back pain and hence Dr Hussain has ordered a CT scan to rule out any significant pathology. Dr Hussain confirmed that the claimant showed no radicular signs but was requesting the CT scan to reassure Mr Kumar.
Dr Hussain was contacted again on 11 February 2021.[17] Dr Hussain stated that Mr Kumar had improved since the last discussion on 18 January 2021. Dr Hussain said that Mr Kumar had improved dramatically and that he had now certified Mr Kumar as fit for working eight hours a day six days per week with a 5kg lifting restriction. Dr Hussain confirmed that Mr Kumar exhibited no signs of radiculopathy or fractures and was hopeful that Mr Kumar could resume his preinjury duties within a week.
REVIEW OF THE RADIOLOGY
[16] Claimant’s bundle AD2 p 76.
[17] Claimant’s bundle AD2 p 79.
In a report of a CT lumbo sacral spine scan dated 4 January 2021, Dr Kapoor wrote that she found discopathy in the claimant most marked at the L4/L5 level with disc protrusion and potential for in neural irritation at this level in particular.[18] At the L1/L2 level there was no disc protrusion and the facets appear normal. At the L2/L3 level there was no disc protrusion and the facets appear normal. At the L3/L4 level there was a minimal disc bulge and early facet joint space degenerative changes. At the L4/L5 level there was a central midline posterior and diffuse and left eccentric disc bulge and bilateral recess stenosis, a little more marked on the left. At the L5/S1 level there was no focal disc protrusion no canal or foraminal stenosis. No acute fracture was seen.
[18] Claimant’s bundle AD2 p 22.
On 6 February 2021 an MRI report of the lumbar spine was provided by Dr Dugal.[19] The conclusion of that report found broad-based disc protrusion at the L4/L5 level causing mild central canal stenosis and mild foraminal stenosis. There was no aggressive osseous lesion, fracture or marrow infiltration noted. Lumbar spine alignment is normal. No evidence of arachnoiditis. At the end upper lumbar spine level no disc protrusions were found associated with neurocentral compression. Existing nerve passes freely. The L4/L5 level showed mild reduced T2 signal in keeping with disc dehydration. There was a broad-based disc bulge measuring 3mm indenting the ventral sack resulting in mild central and mild foraminal stenosis without deviation of the exiting nerve root. The L5/S1 level demonstrated no disc protrusion. Exiting nerves pass freely. Facet joints are maintained. No pars defects seen and paraspinal soft tissues are maintained.
[19] Claimant’s bundle AD2 p 25.
A report of an X-ray of the full spine by Dr Connolly dated 16 February 2021 found a minor lower lumbar facet joint scoliosis present consistent with minor degenerative changes with no other significant abnormality evident.[20] The cervical disc spaces outline normally. The alignment of the thoracic spine was found to be normal with disc spaces normal. There is no focal bony abnormality evident. There is a minimal lumbar scoliosis present. Lumbar disc spaces outline normally. Only minor lower lumbar facet joint sclerosis is noted there is no bony disruption.
SUBMISSIONS
Insurer’s submissions
[20] Claimant’s bundle AD2 p 45.
The insurer has provided three sets of written submissions dated 25 July 2022, and two submissions both dated 10 June 2021.[21]
[21] Insurer’s bundle AD 1 pp 1-3; 17-19 and 20-22.
In the submissions dated 25 July 2022 insurer submits that the pathology found by Medical Assessor Bodel is not corroborated by the objective radiological investigations. The insurer submits that the pathology allegedly found by Medical Assessor Bodel to support his finding that the claimant’s lumbar spine injury is not minor is not supported by the objective radiology evidence. The insurer further submits that “…the Assessor has failed to explain how, if such ‘disc disruption’ or cartilaginous damage does exist, and was caused by the subject accident, that such injury satisfies the definition of an injury which is not minor in accordance with the Act and Guidelines.”
The insurer further submits that the objective medical evidence does not support a finding by Medical Assessor Bodel of disc disruption or damage to the cartilaginos endplate. The insurer argues that in the absence of such pathology the claimant’s lumbar spine injury should have been determined to be a minor injury on the basis of the Medical Assessors medical examination. The insurer also notes that the Medical Assessor confirmed that there was no evidence of radiculopathy in the claimant’s lumbar spine.
In the submissions dated 10 June 2021, which relate to the minor injury dispute, the insurer disputes the claimant’s allegation that he was rear-ended at 80 km/h.[22] The insurer submits that police and ambulance did not attend the accident scene, the claimant did not attend hospital and the claimant’s vehicle did not require towing. The insurer submits that the CT scan of the lumbar spine demonstrated discopathy at the L4/L5 level with disc protrusion and potential for neural irritation. The insurer submits that discopathy is evidence of degeneration of the discs and not indicative of an acute injury caused by the subject motor vehicle accident. The X-ray and MRI scans of the lumbar spine reveal facet joint sclerosis and stenosis which is evidence of degenerative changes predating the accident. The insurer also submits there is no evidence of radiculopathy as required by the MAI Act and Guidelines. Insurer also notes that the claimant’s GP confirmed in his examination on 11 February 2021 that the claimant displayed no signs or symptoms of radiculopathy.
[22] Insurers bundle AD 1 pp 17-19.
In the submissions dated 10 June 2021, which relate to the treatment dispute, the insurer submits that the CT scan, x-ray and MRI scans of the lumbar spine only reveal degenerative changes.[23] The insurer submits there is no radiological evidence of any acute injury to the lumbar spine having been sustained in the subject motor vehicle accident. The insurer also points to the claimant’s GP who confirmed on 11 February 2021 that there was no evidence of any radiculopathy in the claimant’s lumbar spine and confirmed his diagnosis that the claimant had sustained soft tissue injuries only. The insurer concludes that there is no clinical justification for any review by a neurosurgeon of the claimant’s condition.
Claimant’s submissions
[23] Insurer’s bundle AD 1 pp 20-22.
The claimant’s solicitors provided two sets of written submissions dated 18 August 2022 and 31 March 2021.[24]
[24] Claimant’s bundle AD 2 pp 1-2 and 3-5.
In the submissions dated 18 August 2022 the claimant submits that Medical Assessor Bodel was entitled to view the radiology himself and form his own opinion as to the injury or damage to the claimant’s lumbar spine. The claimant’s pathology is consistent with the history that he gives and there are objective signs of injury where Medical Assessor Bodel found guarding and dysmetria. Medical Assessor Bodel found definite structural damage in the claimant’s spine with probable cartilaginos endplate damage which by definition is a non-minor injury.
In the submissions dated 31 March 2021 the claimant submits that the MRI scan confirmed that the claimant had a broad-based disc protrusion causing central canal stenosis and mild foraminal stenosis at the L4/L5 levels. The claimant should be seen by a neurosurgeon to have a diagnosis and prognosis of the injuries to his lumbar spine. The claimant’s solicitor submits that the commission should determine whether the treatment request for the neurosurgeon examination is reasonable and necessary.

MEDICAL EXAMINATION

The Panel met on 7 December 2022 and reviewed the material before it. At that time the Panel decided not to medically re-examine Mr Kumar. The Panel decided that it was able to form an opinion as to the minor /non-minor injuries to the cervical, thoracic and lumbar spine injuries caused by the accident having regard to the available medical reports including reports of X-rays and imaging undergone by the claimant. The Panel also decided it could form opinion about whether or not the proposed treatment and care of a medical consultation with Dr Gambhir, neurosurgeon, for lumbar spine was reasonable and necessary in the circumstances.
As referred to above, the Panel requested the parties response to its preliminary decision not to medically re-examine the claimant and neither party gave a specific response.

CONSISTENCY

The Panel accepted the claimant’s account of how the motor vehicle accident occurred and how he received his reported injuries.

PANEL DELIBERATIONS

Diagnosis and causation

Cervical spine injury

Based upon the medical evidence, radiological evidence and medical reports there is no evidence of radiculopathy in the claimant’s cervical spine. Relying on the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant was diagnosed with a whiplash injury by his treating GP and also by his treating physiotherapist. On 4 January 2021 the CT scan of the lumbar spine demonstrated discopathy at the L4/L5 level with disc protrusion and potential for neural irritation. The full spine X-ray by Dr Connolly dated 16 February 2021 showed the cervical and thoracic disc spaces as outlining normally with only minor lower lumbar facet joint sclerosis.
In the Panels opinion that discopathy is evidence of degeneration of the discs and is not evidence of an acute injury caused by the subject motor vehicle accident. The X-ray and MRI scans of the lumbar spine reveal facet joint sclerosis and stenosis which is evidence of degenerative changes predating the accident. Also there is no evidence in any of the medical reports of radiculopathy as required by the MAI Act and Guidelines. On 11 February 2021 Dr Hussain, the claimant’s treating GP, confirmed that Mr Kumar exhibited no signs of radiculopathy or fractures and was hopeful that Mr Kumar could resume his preinjury duties within a week.
Considering the history and complaint, it is possible there was soft tissue injury to cervical spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury.
Therefore, the Panel assessed the cervical spine injury as a soft tissue injury and thus a threshold injury.

Thoracic spine injury

Based upon the medical evidence, radiological evidence and medical reports there is no evidence of radiculopathy in the claimant’s thoracic spine. Relying on the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant was diagnosed with a whiplash injury by his treating general practitioner and also by his treating physiotherapist. On 4 January 2021 the CT scan of the lumbar spine demonstrated discopathy at the L4/L5 level with disc protrusion and potential for neural irritation. The full spine X-ray by Dr Connolly dated 16 February 2021 showed the cervical and thoracic disc spaces as outlining normally with only minor lower lumbar facet joint sclerosis.
In the Panels opinion that discopathy is evidence of degeneration of the discs and is not evidence of an acute injury caused by the subject motor vehicle accident. The X-ray and MRI scans of the lumbar spine reveal facet joint sclerosis and stenosis which is evidence of degenerative changes predating the accident. Also there is no evidence in any of the medical reports of radiculopathy as required by the MAI Act and Guidelines. On 11 February 2021 Dr Hussain, the claimant’s treating GP, confirmed that Mr Kumar exhibited no signs of radiculopathy or fractures and was hopeful that Mr Kumar could resume his preinjury duties within a week.
Considering the history and complaint, it is possible there was soft tissue injury to thoracic spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury.
Therefore, the Panel assessed the thoracic spine injury as a soft tissue injury and thus a threshold injury.

Lumbar spine injury

Based upon the medical evidence, radiological evidence and medical reports there is no evidence of radiculopathy in the claimant’s lumbar spine. Relying on the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant was diagnosed with a whiplash injury by his treating GP and also by his treating physiotherapist. On 4 January 2021 the CT scan of the lumbar spine demonstrated discopathy at the L4/L5 level with disc protrusion and potential for neural irritation. The full spine X-ray by Dr Connolly dated 16 February 2021 showed the cervical and thoracic disc spaces as outlining normally with only minor lower lumbar facet joint sclerosis.
The Panel notes that Medical Assessor Bodel found some evidence of radiculopathy and also endplate damage or pathology. The Panel also notes that these findings of Medical Assessor Bodel are unsupported and not confirmed by any other doctor, medical report or MRI scan. Accordingly, the Panel relies upon the findings of the MRI report by Dr Dugal dated 6 February 2021 which did not report or find any endplate damage or pathology.
In the Panel’s opinion that discopathy is evidence of degeneration of the discs and is not evidence of an acute injury caused by the subject motor vehicle accident. The X-ray and MRI scans of the lumbar spine reveal facet joint sclerosis and stenosis which is evidence of degenerative changes predating the accident. Also there is no evidence in any of the medical reports of radiculopathy as required by the MAI Act and Guidelines. On 11 February 2021 Dr Hussain, the claimant’s treating GP, confirmed that Mr Kumar exhibited no signs of radiculopathy or fractures and was hopeful that Mr Kumar could resume his preinjury duties within a week.
Considering the history and complaint, it is possible there was soft tissue injury to lumbar spine at the time at the time of the motor vehicle accident.
Therefore, the Panel assessed the lumbar spine injury as a soft tissue injury and thus a threshold injury.

Proposed treatment and care

In this claimant’s case, the Panel is not satisfied that the proposed treatment and care is reasonable and necessary in the circumstances. Set out briefly below is some additional detail and reasons for the Panel’s conclusion.
Reasonable and necessary in the circumstances
In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[25] Grove J stated:[26]
“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.”
[25] [2003] NSWCA 52 (Clampett).
[26] 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.[27]
[27] 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.[28] 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.
[28] 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”.

In this case, based upon the medical evidence, radiological evidence and medical reports there is no evidence of radiculopathy in the claimant’s spine. On 4 January 2021 the CT scan of the lumbar spine demonstrated discopathy at the L4/L5 level with disc protrusion and potential for neural irritation. The full spine X-ray by Dr Connolly dated 16 February 2021 showed the cervical and thoracic disc spaces as outlining normally with only minor lower lumbar facet joint sclerosis. On 11 February 2021 Dr Hussain, the claimant’s treating general practitioner, confirmed that Mr Kumar exhibited no signs of radiculopathy or fractures and was hopeful that Mr Kumar could resume his preinjury duties within a week.
The Panel’s determination is that based on the above evidence, the proposed consultation with Dr Gambhir, neurosurgeon by the claimant is not reasonable and necessary.

CONCLUSION AND CERTIFICATION

For the above reasons the Panel revokes the certificate issued by Medical Assessor Bodel that the injury to Mr Kumar’s lumbar spine was not a minor injury. In the Panel’s opinion all the injuries sustained by Mr Kumar in the motor vehicle accident are threshold injuries. In the Panel’s opinion, and for the reasons given above, the proposed treatment and care is not reasonable and necessary in the circumstances.
The new certificate is attached at the commencement of these Reasons.

[2023] NSWPICMP 371

3 August 2023