QBE Insurance (Australia) Ltd v Lawrence
[2023] NSWPICMP 358
•26 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Ltd v Lawrence [2023] NSWPICMP 358 |
| CLAIMANT: | Yupin Lawrence |
| INSURER: | QBE Insurance Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 26 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was a pedestrian hit by a car in a shopping centre car park; injuries reported to both arms and left hip; two weeks after the accident claimant complained of lumbar spine symptoms and pain; request made for two level lumbar spinal fusion surgery; Medical Assessor approved surgery as reasonable and necessary and caused by the motor accident; Held – original medical certificate set aside; claimant’s proposed treatment and care for spinal surgery not reasonable and necessary and not caused by the motor accident; claimants reported symptoms, presentation and medical examination showed her symptoms were not that of chronic pain originating from the lumbosacral spine. X-Rays and MRI scans show chronic degenerative changes to the lumbar spine including annular tears to the disc but no nerve root compression. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Adam Rapaport dated 16 November 2022 and issues a new certificate determining that: The following treatment and care of a: · L4/5 and L5/S1 anterior lumbar interbody fusion; is not reasonable and necessary in the circumstances. · L4/5 and L5/S1 anterior lumbar interbody fusion; does not relate to the injury caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
On the evening of 29 October 2020 Ms Yupin Lawrence (the claimant) was walking on a one-way road in the carpark of the Westfield Shopping Centre in Hurstville when she was hit and injured by a motor vehicle. Shortly after the accident she was transported by ambulance to St George Hospital Emergency Department.
QBE Insurance Australia Limited trading as QBE (the insurer) is the relevant insurer with liability to pay any damages to Ms Kim under the Motor Accident Injuries Act 2017 (MAI Act).
On or about 11 November 2020 Ms Lawrence lodged an Application for Personal Injury Benefits. In that form the claimant described injuries to her right and left arms and hips but there was no mention of any back pain or other back symptoms.[1]
[1] Claimant’s bundle AD 2 p 391.
On 28 January 2021 the insurer determined that the claimant’s injuries were minor injuries.
On 30 August 2021 the claimant’s solicitors requested an internal review of the insurer’s decision.
On 15 September 2021 the insurer issued a Certificate of Determination – Internal Review affirming that the claimant’s injuries were minor injuries.
On 28 September 2021 the insurer declined the request for L4/5 and L5/S1 anterior lumbar interbody fusion by Dr Peter Khong. An internal review of this decision was lodged on 26 October 2021. On 4 November 2021, the insurer affirmed its decision on the basis that the surgery will not improve recovery.
The treatment and care dispute was assessed by Medical Assessor Adam Rapaport who issued a certificate dated 16 November 2022.
On 12 December 2022 the insurer filed an application with the Personal Injury Commission (the Commission) seeking a Panel review of a single medical assessment.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
This dispute is about whether the L4/5 and L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong is reasonable and necessary in the circumstances and whether the injury is related to or caused by the motor accident.
REVIEW PROCEDURE
On 12 December 2022 the insurer lodged an application for review of the medical assessment of Medical Assessor Rapaport dated 16 November 2022 which was within 30 days of the date on which the certificate of Medical Assessor Rapaport.
On 13 January 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).
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.[3] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] 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.[4]
[4] 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.[5]
[5] 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, which includes two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[6] and Insurance Australia Ltd v Marsh.[7]
[6] [2021] NSWCA 287 at [40], [41] and [45].
[7] [2022] NSWCA 31 at [11], [21] and [64].
As was stated in Keen,[8] the function of a medical panel is neither arbitral or adjudicative; it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[8] At par 40.
The Panel issued two Direction to the parties dated 21 February and 1 March 2023 requiring the parties to upload to the portal indexed and paginated bundles of documents and also advising the parties of the medical examination date and also requiring the claimant to bring to the re-examination copies of all CT scans, MRIs or X-rays of her injuries.
The Panel notes that there are extensive medical records addressing the claimant’s physical injuries. The Panel has read the entirety of the medical records but only proposes to reference those records which are relevant to the treatment dispute pertaining to the spine.
The Panel also notes that the claimant and the insurer have made a number of applications to admit late documents which include the reports of Dr Khong and Ms Fiona Condie.[9] In the case of the report of Ms Fiona Condie the application is accompanied by an email indicating that the claimant’s solicitor consents to the application. In the interests of justice the Panel admits the all of the late documents into evidence which it considered in its deliberations.
[9] Documents filed as AD3 and insurer’s bundle AD 1 pp 96-109.
TREATMENT – STATUTORY PROVISIONS
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)the reasonable cost of treatment and care,
(b)reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) The Motor Accident Guidelines may provide for—
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with sub-cl 2 (b) of Schedule 2 of the MAI Act which defines a medical assessment matter as “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”
Sub-clause 2 (b) of Schedule 2 of the MAI Act was recently amended with the addition of the words “or to be provided” into that provision. That amendment followed a previous Review Panel decision rejecting the proposition that there was power under the MAI Act to determine a claim for future treatment.[10] Accordingly, there is now a clear statutory power in a medical assessment to determine a claim for future treatment and care.
[10] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by ss 3.28(3) which provides:
“(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[11]
ASSESSMENT UNDER REVIEW
[11] See s 3B(2) of the Civil Liability Act 2002.
The dispute was referred to Medical Assessor Rapaport. In his certificate dated 16 November 2022 he certified that the treatment and care for the L4/5 and L5/S1 anterior lumbar interbody fusion relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances
Medical Assessor Rapaport noted that the claimant changed her general practitioner (GP) and attended the Maroubra Medical Centre where her GP Dr Manee Vandebona referred her to Dr Peter Khong a neurosurgeon and spinal surgeon who ordered an MRI of her lumbosacral spine. That MRI uncovered an annular tear at L4/5 against a background of foraminal stenosis and moderate facet joint arthrosis.
Medical Assessor Rapaport wrote that he was persuaded that the disruption to the claimant’s ageing spine was precipitated by the motor accident because of the force of impact. He noted that the claimant has admitted that the low back pain did not appear immediately and that she first brought the attention of her back pain to Dr Saddiq within two weeks of the accident. When she drove herself to see her GP for the first time several days after the accident, she had difficulty taking the stairs outside of her home and had back pain when she got in and out of her car. He found a nexal connection between the pedestrian car accident and the onset of low back pain caused by a disruptive force to the claimant’s lumbosacral spine.
Medical Assessor Rapaport found that the surgical treatment recommended by the claimant’s treating neurosurgeon is reasonable and necessary given the causal relationship of the lumbosacral spinal condition to the pedestrian motor accident.
EVIDENCE BEFORE THE REVIEW PANEL
Application for Personal Injury Benefits
The application for personal injury benefits is dated 11 November 2020. The claimant described her injuries in the form as follows:
“I received injuries in my right, lower arm, right and left thigh, left hip, all of my right palm and part of my left palm and my chest. I also can't fully close my right hand with full force. Still on pain.”[12]
Relevant pre-accident treating records
Clinical records of Hurstville Town Medical Centre
[12] Claimant’s bundle AD 2 p 391.
On 28 August 2016 Dr Nessa appears to have noted a complaint by the claimant about mid-level back pain. His note records her complaint of: Left-sided mid back last night. Today not bad.[13]
Post-accident treating records
Ambulance report
[13] Insurer’s bundle AD 1 p 47.
The ambulance report describes the claimant’s condition as follows.[14] Patient was hit by a car at low speed. Patient fell to the floor in the car park. Soft tissue pain on left hip and pain on haematoma in right forearm. Patient has nil trauma or pain on the head neck or chest. Patient denies loss of consciousness. Patient was able to stand up and walk a short distance however patient experienced pain on left hip on movement or palpitation. Patient is pain-free at rest.
St George Hospital
[14] Claimant’s bundle AD 2 p 28.
Ms Lawrence presented to St George Hospital on 29 October 2020 reporting left hip pain and bilateral hand pain.[15]
[15] Claimant’s schedule of documents p 11.
The St George Hospital Discharge Report dated 30 October 2020 notes the claimant was involved in a ‘low speed MVA without significant sequelae of trauma’ reporting left hip pain and bilateral hand pain [16]. The report notes the speed of the collision was estimated to be 15km/h. The report notes that the claimant was able to mobilise independently. There is no note of an injury to the lower back.
[16] Claimant’s bundle AD 2 pp 49-51.
An X-ray of the left hand at St George Hospital indicated a minimally displaced fracture to the distal phalanx of the left thumb. No other fractures or dislocations were reported.
The left hip, left leg left knee and pelvic girdle were also X-rayed. Nil concerns were reported in the X-ray of the hip. No reported fractures or dislocations. The femoral heads are enlocated. The sacroiliac joint and pubic symphysis are intact. There is no left-knee joint effusion.
Clinical records of Hurstville Town Medical Centre
On 31 October 2020 the claimant attended and was examined by her treating GP Dr Saddiq. He noted that the claimant reported "no neck pain or back pain" as a result of the accident. His notes read as follows:
“Struck by car at Low speed to L side in car park complex Fell over & with No LOC / No neck pain or back pain sustained bruises & pain on R forearm , L wrist / L chest.”[17]
[17] Insurer’s bundle AD 1 p 56.
On 19 November 2020 Dr Saddiq stated that his clinical assessment was as follows:[18]
“Rib strain costochondral margins L side anterior ribs 6.7.8, L side Pelvic sprain (possible SIJ injury)- Possible Lumbar disc injury, Suspect possible disc injury and verve root involvement at L5- require MRI for confirmation.”
[18] Insurer’s bundle AD 1 p 117.
On 23 November 2020 Dr Saddiq noted that the claimant:
“Was in a car accident where she was a pedestrian and has done her scans.
But she has a lot of pain, cant sit properly going through insurance.”[19]
[19] Insurer’s bundle AD 1 p 58.
On 24 November 2020 Dr Saddiq noted that the claimant: “Remains in Low back pain affected her ADL, & mobility MRI - Spine - Lumbar - Post MVA Low back pain persists Referral to Warata imaging.”
Clinical records of St George health practice
On 10 December 2020 Edward Clark osteopath from the St George health practice recorded the claimant’s condition on that day as: “still very sore, although walked in carrying bag without difficulty. pain now not so much down left leg, but in L groin, and R side flank.”[20]
[20] Insurer’s bundle AD 1 p 126.
On 17 December 2020 Edward Clark noted: “still very sore, although moring and bending much better- most pain now localised into L hip on motion, and R side buttock. seems like referral when back is stressed.”
By letter dated 14 January 2021 Mr Clark wrote to Dr Saddiq with a progress report on the claimant. He wrote: “While I think she has progressed well so far, and her pain is now concentrated in the left hip, she is still traumatised from the accident …. Can you please assess for treatment for depression and a psychological review for her PTSD?”
On 19 August 2021 Me Tze Ling reported that: "the claimant reported physiotherapy helps but treatment ceased by Insurer".
Dr Peter Khong, spinal surgeon
The clinical notes of Workers Doctors recorded that Dr Peter Khong, treating spinal surgeon, reported on 7 June 2021 as follows:[21]
"…degenerative disc disease at L4/5 and L5/S1. If her pain persists, she may require a 2 level fusion. For now, I would recommend re-starting physiotherapy and hydrotherapy, as she found this helpful previously."
[21] Claimant’s bundle AD 2 p 193.
On 17 September 2021, Dr Peter Khong, reported no clinical signs of verifiable radiculopathy. He noted reasonable treatment options were analgesia, physiotherapy, steroid injections and surgery.[22] Dr Khong wrote:
“Ms Lawrence continues to complain of severe lower back pain and bilateral leg pain. It has not improved in almost a year. She has degenerative disc disease at L4/5 and L5/S1 with annular tears at both levels, and MODIC endplate changes at L5/S1. Reasonable treatment options at this point include analgesia, physiotherapy, steroid injections and surgery. She has previously trialled analgesia and physiotherapy. A steroid injection is unlikely to give her sustained pain relief. For the treatment of her back pain, surgery is reasonable.”
[22] Claimant’s bundle AD 2 pp 195-198.
On 7 February 2023 Dr Khong reviewed the claimant’s condition via a telephone consultation. In his report of the same date Dr Khong summarised the history of previous consultations with the claimant. He noted that Ms Lawrence states her back pain is terrible. She has burning and numbness in her back. She also gets pain and numbness in both buttocks radiating down the lower limbs to the heels. Dr Khong then stated that his impression was as follows:
“Mrs Lawrence continues to complain of severe lower back pain and bilateral lower limb pain. She has degenerative disc disease at L4/5 and L5/S1. It has been over 2 years since her injury and her pain has not improved. We had previously submitted a request for an L4/5 and L5/S1 anterior lumbar interbody fusion. I understand this was determined reasonable by the commission but unfortunately this decision is being challenged. We await the outcome of this. I have arranged for Mrs Lawrence to have a new MRI as her last one is a year old. I will review her in a few months to follow her progress.”[23]
[23] Claimant’s bundle AD 2 pp 409-410.
On 30 March 2023 Dr Khong examined the claimant and reported on her condition.[24] Dr Khong briefly recounted the claimant’s medical history and her consultations with Dr Khong. Dr Khong refer to a recent MRI Lumbar Spine 14/2/23 (Castlereagh) which showed persistent degenerative disc disease at L4/5 and L5/S1 with dehydration and annular tears. Modic endplate changes at L5/S1. Some bilateral L4/5 lateral recess stenosis worse on the right.
[24] Document AD 3.
Dr Khong wrote that his impression of the claimant was:
“Mrs Lawrence remains debilitated by lower back pain and bilateral leg pain. It has been almost 2.5 years since she was hit by a car. She has failed non-operative management options with analgesia and physiotherapy. Her MRI demonstrates degenerative disc disease with annular tears at L4/5 and L5/S1. We had previously submitted a request for an L4/5 and L5/S1 anterior lumbar interbody fusion. This was declined, but subsequently approved by the commission. This approval has been appealed.
Mrs Lawrences continues to complain of severe pain which affects all activities of daily living. She is unable to work. She still requires an L4/5 and L5/S1 anterior lumbar interbody fusion. We await appeal for surgery. I will review her in a few months to follow her progress.”[25]
Radiology MRI and X-ray investigations and records
[25] Document AD 3.
An MRI of the lumbar spine dated 4 December 2020 demonstrated chronic degenerative changes in the lower lumbosacral spine with facet arthrosis, significant foraminal stenosis, disc bulges with no nerve root compression and a small right paracentral annular tear.[26]
[26] Insurer’s bundle AD 1 pp 96-109.
An X-ray of the lumbar spine dated 28 September 2021 was performed at the request of Dr Khong. The X-ray showed no evidence of active facet joint inflammation or significant endplate degenerative uptake in the lumbar spine. The radiologist Dr Herald concluded that there was: "There is no significant endplate degeneration or disc height narrowing. …No abnormality demonstrated".[27]
[27] Claimant’s bundle AD 2 pp 404-405.
On 4 December 2021 an MRI report by Dr John Rusli showed no traumatic injury. The MRI reported that there is:
"The alignment disc and vertebral body height are preserved with disc desiccation at L4 – L5 and L5 – S1 level. There is minor spondylitic change primarily characterised by minor osteophytic lipping. There is moderate facet joint arthrosis of the L4 – L5 and L5 – S1 level with minimal change elsewhere….
No marrow oedema to indicate bony injury. There is only degenerative marrow change at the L5-S1 level on the left. There is disc change but there is moderate facet joint arthrosis at these levels. A small annular tear of the central and right paracentral region of the L4-5 with minimal broad based disc bulges at L4-5 and L5-S1 level and significant canal, lateral recess or foraminal stenosis. In particular, there is no evidence of left sided nerve root compression.”[28]
Medical assessment - Physiotherapy Assessment Report by Fiona Condie,
[28] Insurer’s bundle AD 1 pp 92-94.
Physiotherapist
A detailed physiotherapy assessment report dated 23 February 2023 was prepared by Fiona Condi.[29]
[29] Insurer’s bundle AD 1 pp 96-109.
Ms Condi’s report summarised and presented a very detailed history of the claimant’s symptoms, treatment and history of medical examinations. Ms Condi also examined the claimant and gave a detailed report on her findings and also an analysis of the treatment the claimant had received from various medical service providers.
In her report Ms Condi gives a detailed analysis of the claimant’s condition and the necessity for spinal surgery in her case. Ms Condi states:[30]
“Both MRI scans of her lumbar spine reported degenerative changes. At the time of the accident she appears to have been asymptomatic. It seems that the accident aggravated a non -symptomatic degenerative condition. It is unclear if the annular tear of L4/5 intervertebral disc, as reported in MRI scan dated 4th December 2020, was traumatic or degenerative. The injuries to her forearm, anterior thigh/hip and chest appeared soft tissue in nature. I note that her physical injuries were determined by PIC assessor Philip Truskett to be minor in relation to the Motor Accident Injuries Act (2017).
Mrs. Lawrence’s current functional capacity is significantly reduced when compared to her pre-injury level. She has been unable to return to work, and is limited in bending, walking and carrying/lifting activities.
Initially osteopath Mr. Clark reported findings that indicated an L5 nerve compromise (myotome weakness). Despite Mrs. Lawrence complaining of radicular type symptoms all radiological investigations and subsequent medical (including Dr. Khong and my own findings) have not indicated neural compromise. I note dynamic X-ray investigations of lumbar spine did not show instability between the spinal segments. I also note that Dr. Khong has only seen Mrs. Lawrence in person in July 2021. The following review consultations have been conducted via phone.It is not my scope of practice to determine whether spinal surgery is reasonable or necessary in the circumstances. I note that assessor Rapaport (general surgeon) on 22nd November 2022 determined that surgery was reasonable and necessary to the accident. From my experience when managing presentations like Mrs. Lawrence’ surgical intervention may be performed (and beneficial) when there are clinical findings of neurological compromise and/or instability between spinal segments (traumatic or degenerative) or other structural pressures such as a tumour/ foreign body. Spinal surgeon Dr. Khong appears to have only seen Mrs. Lawrence once in person and appears to be being swayed by Mrs. Lawrence’s reported radicular type symptoms. There seems to be no clinical or radiological findings to date to support surgical intervention. The treating physiotherapist Thuy Nyguyen also indicated that Mrs. Lawrence could require surgical treatment. He also had not reported finding neurological signs. He seems to feel she is presenting with an intervertebral disc lesion. He reported that he did not believe that manual and exercise therapy on its own will lead Mrs. Lawrence to recovery. It certainly seems that a second opinion from a neuro-spinal surgeon could be useful to more clearly determine whether spinal surgery is indicated in Mrs. Lawrence’s case.”[30] Insurer’s bundle AD 1 pp 107-108.
Regarding the possibility of further physiotherapy treatment and whether all conservative treatment options had been pursued Ms Condi wrote:
“Although Mrs. Lawrence has already received extensive conservative treatment my findings in this assessment indicate that further physiotherapy treatment could assist in her recovery. The physiotherapy treatment would likely be more effective if it adopts a specific active based cognitive behavioural approach (as outlined above). This should include postural education and training her to adopt healthier movement patterns. I suspect that Mrs. Lawrence may benefit from referral to a pain management specialist, to assist with helping her manage her high levels of pain and further assist normalising her kinesiophobia. These treatments have not as yet been adopted and such it seems that conservative treatment has not been fully exhausted. This multi-faceted approach should gradually assist her recovery and certainly seems worth trailing prior to considering more invasive surgical treatments, which themselves have no guarantee of being successful.”[31]
[31] Insurer’s bundle AD 1 p 109.
SUBMISSIONS
Insurer’s submissions – 17 February, 21 April and 12 December 2022
The insurer’s solicitors made three written submissions dated 17 February, 21 April and 12 December 2022.[32] The written submissions dated 17 February 2022 related to the minor injury dispute.
[32] Insurer’s bundle AD 1 pages 3-6 and 10-13.
In the submissions dated 21 April 2022 the insurer submitted that the proposed treatment is not reasonable and necessary in the circumstances because:
(a) the treatment requested relates to a condition which is degenerative in nature and not caused or aggravated as a result of the subject accident. The proposed treatment will not improve the claimant's recovery, and
(b) the claimant has not exhausted all conservative treatment options available to treat the alleged lower back injury.
The insurer also submits that the proposed surgery relates to the claimant's degenerative injuries present at the L4/5 and L5/S1 levels which are not related to the subject accident and therefore the proposed surgery is not reasonable and necessary in the circumstances.
The insurer submits that Dr Khong's suggestion that the claimant is unlikely to improve without surgery does not correlate with his previous recommendation for physiotherapy and hydrotherapy to alleviate the symptoms of the alleged lower back injuries. The claimant has not undergone any physiotherapy or hydrotherapy since this recommendation was made. This is further supported by the comments of Ms Ling who reported that physiotherapy was of benefit to the claimant's alleged lower back injuries.
The insurer submits that the claimant has not exhausted conservative treatment options available to address the alleged lower back condition. The surgery recommended is therefore not reasonable and necessary in the circumstances.
In the submissions dated 12 December 2022 the insurer submitted that:
· the proposed treatment will not improve the claimant's recovery, and
· the claimant has not exhausted all conservative treatment options available to treat the alleged lower back injury.
The insurer also submitted that Dr Khong's suggestion that the claimant is unlikely to improve without surgery did not correlate with his previous recommendation for physiotherapy and hydrotherapy to alleviate the symptoms of the alleged lower back injuries. The claimant has not undergone any physiotherapy or hydrotherapy since this recommendation was made.
The insurer also submitted that the claimant had not exhausted all conservative treatment options available to address her lower back condition. There are other types of treatment options available to the claimant, other than surgery. These options include: osteopathy, analgesia, physiotherapy, exercise physiology or an exercise program that could achieve comparable outcomes.
The insurer submitted that the claimant has not yet undergone an appropriate course of physiotherapy to determine whether her condition might improve with conservative treatment, prior to undergoing the proposed surgery.
Claimant’s submissions – 6 and 17 January 2022
The claimant’s solicitor provided two written submissions dated 6 and 17 January 2022 in response to the insurer’s submissions.[33]
[33] Claimant’s bundle AD 2 pp 1-7.
In the first set of submissions dated 6 January 2022 the claimant’s solicitor submits that the Medical Assessor has shown a clear path of reasoning.
On page 6 of the original certificate the Medical Assessor summarises that as the claimant has tried conservative treatment and it has not resolved her disabilities and pain, the fusion surgery is reasonable and necessary.
The claimant submits that the particulars of this dispute are whether the proposed spinal fusion surgery was reasonable and necessary. It is not whether or not the claimant has had enough physiotherapy.
The claimant further submits that Medical Assessor Rapaport has shown his path of reasoning and has responded to the insurer’s clearly articulated submissions concerning the sufficiency of past conservative treatment by noting the past treatment and its effectiveness in the body of the report.
The claimant submits that no error is disclosed and accordingly the review application should be dismissed.
In the second set of submissions dated 17 January 2022 the claimant’s solicitor notes that the Claimant has a diagnosis of post-traumatic stress disorder from psychologist, Carl Nielsen, on 30 June 2021. A Certificate of Capacity by Dr Vandebona dated 3 December 2021 reports an annular tear at the L4/5 segment and Depression in relation to the accident. The claimant continues to report severe lower back pain which remains unresolved and suffers from depressive symptoms which limit her ability to engage with her activities of daily living.
The claimant submits that the annular tear is an injury caused by the subject accident and by definition should not be considered a minor injury. It is submitted that the claimant did not require any medical treatment for her lumbar spine until the accident and now requires extensive treatment to alleviate her severe back pain.
The presence of the annular tear was first reported in MRI scan of the lumbar spine dated 4 December 2020 . Within six weeks from the accident. The MRI report noted a small annular tear of the central and right paracentral region at the L4/5 segment.
According to the clinical records of Hurstville Town Medical Centre which date back to May 2010, there have been no reports of lower back pain until after the date of accident. The only report of back pain which predates the subject accident is on 20 March 2016 for left sided mid back pain. This clinical entry is not associated with the present lower back complaints and was a once off report.
Additionally, the clinical records of Maroubra Medical Centre, which date back to December 2018, have no record of a lumbar spine injury until after the date of accident.
With no prior reports of a lumbar spine surgery it is reasonable to conclude that the annular tear is a traumatic injury that was caused by the motor vehicle accident of 29 October 2020. The claimant submits that any symptoms of lower back pain developed only after the subject accident.
In the alternative argument, the annular tear was degenerative in nature and the accident caused an aggravation of that injury. In such a case the claimant’s annular tear is not minor but is an aggravation of a previously asymptomatic condition.
Regarding the proposed treatment being reasonable and necessary the claimant’s solicitor submits that her treating neurosurgeon, Dr Peter Khong, on 17 September 2021 opined that reasonable treatment options at that stage included analgesia, physiotherapy, steroid injections, and surgery. The claimant’s solicitor states that she has previously trialled analgesia and physiotherapy with little success in alleviating her pain.
For treatment and care to be provided to persons injured by a motor accident, the treatment must be reasonable and necessary. The claimant’s solicitor argues that the medical evidence is clear that the claimant has exhausted her conservative treatment options yet continues to have complaints of severe lower back pain more than one year since the date of accident. The proposed surgery by Dr Kong is therefore reasonable as the claimant has exhausted her treatment options and is necessary to allow her to resolve her debilitating lower back pain which was caused by the motor accident.
The claimant submits that the onus is on the insurer raise evidence against the treatment request. They have not done that. In fact, they have raised no evidence.
THE MEDICAL EXAMINATION
Ms Lawrence attended the Commission’s rooms at 10.00am on 3 April 2023. A Thai interpreter, Mr Aruphen Klumjatuvong, NAATI No: CPN6QL14V was in attendance throughout. At the start, the role of the Review Panel and of the re-examination was explained to Ms Lawrence. She did appear to understand and speak some English, but stated that she preferred to use the Thai interpreter throughout.
The examination was conducted in person by Medical Assessor Couch and took approximately 90 minutes. Full Covid-19 precautions were observed.
History
The Medical Assessor started by going through the history recorded by Medical Assessor Rapaport in his certificate of 16 November 2002, and clarifying or adding to this as appropriate.
Pre-accident medical history and relevant personal details
Ms Lawrence confirmed that she came to Australia from Thailand in 2005 to study English. She had met her Australian husband here. Prior to the subject accident she was working along as a cleaner in private houses. She worked 25 to 30 hours a week and worked as a private operator. She described her cleaning work as “very hard work”, mentioning carrying a backpack vacuum cleaner. However on questioning, she denied any past history of low back injuries or low back pain. When asked if she did any leisure exercise, she said that she had been too busy for this. Ms Lawrence also stated that some time after the subject accident, “I resumed work for about a month – however I collapsed”.[34]
[34] Please note that all quotations in the medical examination are recorded in italics
Ms Lawrence said that her husband is aged 65 (she is now 53) and is in poor health and does not work. She described him as having many medical conditions including diabetes. He is always tired and sleeps a lot. She added that he had worked for a short while “selling houses” years ago. They have one son, aged 17, who is in year 12 and she said that he was doing well and described him as a “good boy”.
History of the motor accident
Ms Lawrence confirmed that she had been struck by a vehicle as a pedestrian in the carpark of the Westfield Shopping Centre in Hurstville on the evening of 29 October 2020. She recalled that the car had a front bullbar and struck her on the chest – “full on”. She could not describe the actual speed of the vehicle. She said that she was “thrown in the air and landed on the ground. My shopping bag was thrown several metres”. She described landing in a sitting position and recalled having her hands behind her for support. She recalls sitting next to a support/pillar until the ambulance arrived.
In his certificate, Medical Assessor Rapaport described the claimant being taken to St George Hospital Emergency Department and that “she experienced no back pain although there was pain in the gluteal and left hip region”. On this occasion, the Medical Assessor asked Ms Lawrence when she first noticed low back pain-she replied that this was about a week after the accident. She added that she had blue bruising on her left arm and over the anterolateral aspect of the left thigh, and that her left arm was swollen.
She confirmed that she had rested at home for several days and did not attend her cleaning job. The Medical Assessor asked Ms Lawrence about activities of daily living during these first few days at home. She replied that she had to do everything, because her husband was sick – “no matter how painful I felt”. She also mentioned that she had no relatives to call on for assistance. She was asked about her physiotherapist, to who her GP Dr Saddiq had referred her – she recalled that initial attempts at treatment were very painful and that the physiotherapist “couldn’t touch my body”. She went on to describe many sessions of physiotherapy on a weekly basis, including modalities, cupping and some manual treatment. She said that “it helped relaxation but the pain is still there”.
She recalled symptoms in the weeks and months after the accident as including low back pain radiating anteriorly, pain in the left arm, and having difficulty with the mobility of her left lower limb – she described having to lift her left leg with her hands. She recalled finding stairs very difficult.
Ms Lawrence confirmed that she had referred by a second GP – Dr Manee Vandebona, to Dr Peter Khong (neurosurgeon with a special interest in spinal surgery). She had seen him for a second time a week prior to this medical examination. The Medical Assessor asked Ms Lawrence what she had been told. She replied:
“He showed me the MRI scan and pointed out a black spot. An operation would help, but not 100%. Not bad enough to be in a wheelchair, but would help…I said I’d be ready for operation because I can no longer tolerate the pain. I have pain sitting and walking, pain travelling to my buttock and vagina. Hot flushes on my body for more than four hours at a time.”
Ms Lawrence went on to say that she felt like a knife stabbing in her back and imagined taking it out. She said that she did want to have surgery.
Ms Lawrence was asked about any other treatment received for her injuries – she described an injection performed by a radiologist to her lateral left hip (probably to the greater trochanteric bursa). She said this had been done “when I can’t lift my leg”, and it did help her to left her left leg afterwards. She had not seen any other specialists in relation to her back or other musculoskeletal symptoms. She had been seeing a Thai-speaking psychologist intermittently for over a year and the insurer had apparently paid for this. She was asked if this had helped. She replied: “talking and talking – somewhere that I can divulge my thoughts – I am the person that doesn’t speak out – I just keep it to myself, not many friends.”
When asked more about this, she said that she felt very lonely.
Current physical symptoms
When asked to describe her symptoms, she described “pain and hot flushes”. She went on to describe symptoms in more detail as follows:
Pain
Ms Lawrence was asked to stand up and point to the painful area(s). She pointed to the lumbosacral area and the left buttock and crutch area, with also radiation to the posterior aspect of both thighs, calves and the soles of the feet. She said the pain was present “all the time – 24 hours”. The VAS scale of pain rating was explained to her and she rated her usual pain levels as “about 7-9”.
She said that pain is increased by heavy lifting and using the vacuum at home. She said that she cannot sit in one position-she thought that she needed to move after about 10 minutes. Standing still is limited-when working in the kitchen, she has to sit on and off for relief. She described limited ability to bend forward. She was asked about driving – she said that she does drive, but going over speed bumps is painful.
Other symptoms
Ms Lawrence said that she is always tired and also described “hot flushes”. She describes these as being felt over the same area as the pain, including the perineum/vulval area.
Present activities
As noted above, Ms Lawrence said that because her husband is in poor health and she does not have family to help her, she continues to do all domestic tasks at home. She has to help her husband shower and helps him with his medication. I asked if he could dress himself; she replied that “he just wears undies”. She does the shopping herself – I asked about her son, who is in Year 12; she said that he does not do much around the home. Ms Lawrence said that she sleeps poorly and wakes every hour through the night.
Present treatment
She takes Panadeine Forte intermittently, but said that she had reduced this because it did not help much. She had last taken two tablets the previous week, and had not taken any on the day of examination. She also described using Ondansetron wafers for nausea. She had not apparently been prescribed a hypnotic or antidepressant medication. She was asked if she had been given an exercise program by the physiotherapist. She said that she had been given some exercises to do at home, but described some difficulty with these.
Claimant’s further comment about her situation
Ms Lawrence was asked more about her life prior to the subject accident. She agreed that she had considerable demands, doing everything at home and working as a cleaner, but also said that “I had happiness before the accident…before I did not have pain like this”.
Physical examination
Ms Lawrence was noted to be sitting in the waiting area after having had her RAT test when the Medical Assessor arrived 10 minutes before her appointment time. He greeted her and she spoke some English. She presented as a slim Thai woman who was quiet and looked tired with a flat affect. There was a few minutes’ waiting for the interpreter to arrive and she was noted to stand up from her chair and stretch during this period. She sat quite erect in the waiting room chair. She said that she was right-handed. Height was 152cm and weight 45.6kg (BMI 20) (she said that she had lost weight from about 50kg prior to the accident).
Upper limbs
Upper limbs were slim, consistent with her slight build. Hands were small clean and soft, and grip strength was normal bilaterally.
Back/spine
When Ms Lawrence was asked to lie prone on the examination couch for examination of her spine, she climbed up onto the couch, sat on it, lay supine, and then rolled over to the prone position. She was later able to roll back to the supine position.
On palpation with her lying prone, she in fact denied any tenderness over the lumbosacral spine including distally at the L5/S1 level. There was no evidence of lumbar paraspinal muscle guarding or spasm. However, she reported marked tenderness over the sacrum (and initially over the coccyx as well) and also over the region of both sacroiliac joints (SIJ’s), the right being slightly more tender than the left.
When she was standing, she was asked to move her bodyweight slowly from one foot to the other; the muscles on the weightbearing side relaxed in the normal manner, indicating no spasm. Active range of motion (AROM) of the lumbar spine was carefully measured with Ms Lawrence standing with knees straight. Flexion was limited to about two-thirds of normal - she reached her fingertips to just below the knees, with a reduced 4cm expansion over a measured 15cm lumbar segment (the normal lower limb for this MacRae-Wright movement is 5cm). She convincingly described pain during flexion, and more so during recovery from flexion – she appeared to experience sudden pain during the recovery movement.
Lumbar extension was a third of normal at 10 degrees and painful. Lateral flexion was markedly asymmetric. It was full to the right at 30 degrees, but only a third of normal to the left at 10 degrees, accompanied by pain.
Particularly in view of the rather atypical description of her symptoms and tenderness to palpation over the SIJs, Patrick’s (Faber) provocation tests were performed. On the right this was pain-free. On the left she described groin and hip pain, but not pain specifically in the SIJ.
Lower limbs
Measured 10cm proximal to the patella, both thighs measured equally in girth at 36cm. The right (dominant side) calf measured 31cm, the left 30.5. Both lower limbs were neurologically normal with no evidence of radiculopathy: Knee jerks and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root) was normal bilaterally, although effort was somewhat variable on the left side.
Power of right knee flexion and extension was full. On the left there was no convincing weakness but she complained of pain in the left hip and groin area during testing. Sensation to light touch was preserved bilaterally, although Ms Lawrence described possible slight subjective reduction in the left foot. Pinprick sensation was normal and symmetrical in both legs and feet. Straight-leg-raising was essentially pain-free and full, at 80 degrees on the right and 70 degrees on the left.
AROM of both hips was carefully assessed. On the right, all hip movements were very full and pain-free. On the left, Ms Lawrence could reach full range of AROM except for internal rotation, which was restricted to 15 degrees, compared with 40 degrees on the right. It was noted that although she could flex the left hip fully, she complained of sudden pain in the hip/groin during this movement. There was no detectable tenderness to palpation over either greater trochanteric bursa (GTB). Both knees were clinically normal, with completely full AROM from 0 to 150 degrees without pain or crepitus. Ligaments were clinically intact and Ms Lawrence denied any knee symptoms.
As noted above, Ms Lawrence was able to balance on either foot and there was no Trendelenburg dip of the pelvis, although she said that standing on her left foot sometimes causes low back pain. She could perform a tandem walk normally (walking in a straight line heel to toe). Balance as tested by Romberg’s test (standing to attention with eyes closed) was normal.
She was able to take a few steps in bare feet with weight on her forefeet and heels off the floor. She was also able to take a few steps with her weight on her heels and forefeet off the floor, although she complained of some pain. She was also able to perform a full squat to the floor and recover without needing hand support, but described increased pain. (The Medical Assessor also noted that her toenails had been varnished – on questioning Ms Lawrence said that she was able to do this herself).
Further comments from Ms Lawrence
At the end of the examination, Ms Lawrence stated “I need to fix my back. Look at my age now – if I get older, imagine how worse it could be”. She also told me that her current GP, Dr Manee Vandebona, speaks Thai, and that they have mostly had Telehealth conversations. She said that she had changed doctors “…because Dr Saddiq said I could work – even at the time I was not able to lift my leg up”.
Medical Assessor’s impression after the examination
Ms Lawrence describes a significant accident when she was knocked down by a car with a bull bar in a carpark some two and a half years earlier. She convincingly describes a significant impact on her life and quality of life since then. Although she tried to return to some domestic cleaning duties, she was apparently not able to do so, although she continues to do everything at home, having a son in year 12 and a disabled husband.
She gives a convincing history of distressing pain symptoms, but they are not typical of a lumbar spine injury. The pain is mainly localised to the left pelvis – it was not clear whether it was originating from the hip joint, left SIJ or other nearby structures.
The Medical Assessor felt that she required further assessment by a rheumatologist, musculoskeletal specialist or pain specialist. She does not appear to have been fully investigated.
Ms Lawrence appears depressed and this is contributing to her distress, but not primarily causing her pain. The Panel is notes that the claimant has been diagnosed with two psychological disorders by her treating practitioners: post-traumatic stress disorder and Depression. The Panel also notes that she has pre-existing psychological injuries in the form of mixed Anxiety and Depression as diagnosed by Dr Saddiq in GP Mental Health Plan dated 4 August 2020. The Panel also notes the claimant’s submissions that the subject accident has aggravated her previous symptoms and exacerbated her psychological sequalae.[35]
[35] Claimant’s bundle AD 2 at A 13 and pp 6-7
The Medical Assessor formed the strong opinion that there was no apparent indication for lumbar fusion (or other surgery), and that such a procedure would carry a high risk of resulting in “failed back surgery syndrome”.
PANEL’S DETERMINATION
Ms Lawrence is a 53-year-old woman who was involved in the subject accident on 29 October 2020. There was evidence from the hospital records that the claimant reported left hip pain and bilateral hand and arm pain. X-ray imaging at that time showed a fractured left thumb but other X-rays showed no other fractures or dislocations. On 31 October 2020 the claimant visited her treating GP Dr Saddiq complaining of hip pain but no neck or back pain. From Dr Saddiq’s records it appears that the claimant first reported back pain on 19 November 2020. The claimant herself did not refer to any back pain when describing her injuries in her application for personal injury benefits which was dated 11 November 2020. The claimant’s treating spinal surgeon Dr Peter Khong noted degenerative disc disease in her lumbar spine region, and stated that the claimant may require two level spinal fusion if her pain persists. Dr Khong also recommended physiotherapy hydrotherapy and other conservative treatment options. In his most recent report dated 30 March 2023 Dr Khong stated that nonoperative management options with analgesia and physiotherapy had failed the claimant.
The Panel notes that the radiology reports including x-rays and MRI shows chronic degenerative changes in the lower lumbar spine. Some of the scans and X-rays showed disc bulges but with no nerve root compression and small annular tears to discs and X-ray on 28 September 2021 performed by Dr Herald showed no significant endplate degeneration or disc height narrowing and he found no abnormality demonstrated.
The Panel conclusion is that the proposed spinal fusion operation is not reasonable and necessary in the circumstances of the claimant’s case and does not relate to the injury caused by the motor accident . The Panel notes that there is no record of the claimant complaining of lower back pain immediately after the accident. The Panel also notes that it appears the first complaint of back pain after the accident was made to her treating GP over two weeks after the accident. The Panel also notes that that the X-rays and MRI scans show chronic degenerative changes to the lumbar spine including annular tears to the disc but there is no nerve root compression. In circumstances where there is no clear evidence of nerve root compression or instability between the spinal segments or consistent reports of radiculopathy, the Panel view is that the proposed spinal surgery may not improve the claimant’s reported symptoms. Importantly, Medical Assessor Couch, after detailed history-taking and examination, did not consider that the clinical picture was that of chronic pain originating from the lumbosacral spine. The Panel also notes that the claimant and her treatment medical providers did report some benefits to the claimant symptoms from conservative treatment including physiotherapy.
In this claimant’s case, the Panel is not satisfied that the proposed treatment and care is reasonable and necessary in the circumstances. The Panel is also not satisfied that the proposed treatment and care relates to the injury caused by the motor accident. 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,[36] Grove J stated:[37]
“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.”
[36] [2003] NSWCA 52 (Clampett).
[37] 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.[38]
[38] 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.[39] 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.
[39] 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, and for the reasons given above including the claimant’s presentation and the Panel’s medical examination, the Panel’s determination is that the proposed surgery of L4/5 and L5/S1 anterior lumbar interbody fusion was not appropriate for the symptoms described by the claimant. It is not a medically recommended procedure for a person presenting with her symptoms and may not be effective in her case. Based upon the evidence before it the Panel’s determination is also that conservative treatment options such as physiotherapy appear to have given the claimant some benefit in the past and these alternative treatments should be again attempted with the claimant.
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.[40] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[40] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[41] 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.
[41] [2018] NSWSC 1710 at [29] (Phillips).
We do not accept that there was any injury to the lumbar spine caused by the motor accident including whether by way of aggravation of pathology or exacerbation of any symptoms. Accordingly, the Panel does not accept that the treatment relates to the injury caused by the motor accident.
CONCLUSION AND CERTIFICATION
For the above reasons the Panel revokes the certificate issued by Medical Assessor Rappaport concerning the proposed spinal surgery. The proposed treatment and care is not reasonable and necessary in the circumstances. The proposed treatment and care does not relate to the injury caused by the motor accident.
The new certificate is attached at the commencement of these Reasons.
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