Rosenbauer v Allianz Australia Insurance Limited
[2022] NSWPICMP 470
•17 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rosenbauer v Allianz Australia Insurance Limited [2022] NSWPICMP 470 |
| CLAIMANT: | Simone Rosenbauer |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Clive Kenna |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 17 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered soft tissue injuries to the spine in a motor accident on 16 January 2020; the issue was whether a further seven sessions of physiotherapy treatment were reasonable and necessary; the claimant had received 31 sessions of physiotherapy and 19 sessions of exercise physiology paid by the insurer; further sessions of physiotherapy had been paid by the claimant; the claimant was re-examined by Medical Assessors on the Panel; examination findings showed no neurological signs and movements were inconsistent; the claimant admitted that she received only short-term benefit from physiotherapy described as “passive therapy”; there was a lack of clinical and rehabilitative context for the continuation of physiotherapy; Held – findings made that seven sessions of physiotherapy was not necessary and would not improve recovery. |
| DETERMINATIONS MADE: | Medical Assessment Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel confirms the certificate dated 22 March 2022. Medical Assessment – Recovery Review Panel Assessment of Recovery The Review Panel confirms the certificate dated 22 March 2022. |
REASONS
BACKGROUND
1.Ms Rosenbauer suffered injury in a motor accident on 16 January 2020. The insured vehicle ran into her stationary scooter causing Ms Rosenbauer to be thrown and land on the street.
2.The insurer insured the owner and driver of other vehicle for liability to pay
Ms Rosenbauer any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).3.The issues in dispute are whether seven sessions of physiotherapy are reasonable and necessary in the circumstances, caused by the motor accident and whether the treatment will improve the recovery of the injured person.
4.By letter dated 17 February 2021 the insurer denied the request for physiotherapy on the basis that the treatment was not reasonable and necessary.[1]
[1] Claimant’ bundle, p 91.
5.Section 7.17 of the MAI Act defines a “medical dispute” to include a dispute between the parties about a medical assessment matter.
6.Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including 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” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
7.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the dispute is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
8.The disputes were referred to Medical Assessor Shahzad who issued a medical assessment certificate dated 22 March 2022. Medical Assessor Shahzad concluded that no physiotherapy for any body part was reasonable and necessary or would improve recovery.[3]
[3] Claimant’s bundle, p 24.
THE REVIEW
9.The applications for referral of the medical assessments to a review panel were made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
10.The President’s delegate referred the medical assessments to the review panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, p 7.
11.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.12.The review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
13.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.[7]
[7] Section 41(2) of the PIC Act.
14.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.[8]
[8] Rule 128 of the PIC Rules.
15.The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
16.The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this Direction.
STATUTORY PROVISIONS
17.Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(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,
….
(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.”
18.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.
19.That conclusion is consistent with Schedule 2 of the MAI Act that defines a medical assessment matter as “whether any treatment and care 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)” (emphasis added).
20.Clause 2 (b) of Schedule 2 of the MAI Act was amended with the inclusion of the words “or to be provided” were inserted into the provision. The amendment followed a previous Commission decision rejecting the power under the MAI Act to determine a claim for future treatment.[10]
[10] Obeid v AAI Ltd [2022] NSWPICMP 76.
21.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 s 3.28(3) which provides:
“(1) 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.”
22.The relevant Motor Accident Guidelines 2017 (the Guidelines) giving effect to when payments may be authorised after the six- month period pursuant to s 3.28 of the MAI Act are contained in cl 5.16. Clause 5.16 of the Guidelines contains the reference to “recovery” in the context of treatment of care after a period of 26 weeks. Further defined expenses are recoverable after 26 weeks, even though the injuries are only minor injuries, if one of three conditions apply. One of those conditions is that the “treatment and care will improve the recovery off the injured person”. The clause provides:
“5.16 For a person whose only injuries are minor injuries, the payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is:
(a) medical treatment, including pharmaceuticals
(b) dental treatment
(c) rehabilitation
(d) aids and appliances
(e) education and vocational training
(f) home and transport modifications
(g) workplace and educational facility modifications
and:
(h) the treatment and care will improve the recovery of the injured person, or
(i) the insurer delayed approval for the treatment and care expenses, or
(j) the treatment and care will improve the injured person’s capacity to return to work and/or usual activities.”
23.Clauses 4.76 - 4.77 of the Guidelines provides:
“4.76 People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant, providing support based on best practice and tailored to their individual circumstances and needs.
4.77 The insurer should apply the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services, which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:(a) measure and demonstrate the effectiveness of the treatment
(b) adopt a biopsychosocial approach – consider the whole person and their individual circumstances
(c) empower the injured person to manage their recovery
(d) implement goals focused on optimising function, participation and where applicable, return to work
(e) base treatment on the best available research evidence.”
SUBMISSIONS
Claimant’s submissions dated 27 April 2021[11][11] Claimant’s bundle, p 10.
24.Ms Rosenbauer provided a detailed summary of her treatment since the motor accident. The claimant reported that she had only received six concurrent sessions of physiotherapy and exercise physiology before the insurer’s declinature.
25.It was submitted that concurrent physiotherapy and exercise physiology treatment provided the most pain relief since the motor accident. Since the claimant has not been receiving physiotherapy treatment, her neck pain has worsened causing her headaches to become more frequent and severe.
26.It was submitted that the absence of treatment will affect the claimant’s ability to continue working as a lecturer and “further delay her ability to start producing artworks”.
Claimant’s submissions dated 17 June 2022[12]
[12] Claimant’s bundle, p 1.
27.These submissions were filed seeking leave to review the medical assessments.
28.The claimant submitted that the Medical Assessor failed to give any reasons on whether the treatment was reasonable and necessary and otherwise incorrectly stated that the claimant had not filed submissions.
Insurer’s internal review[13]
[13] Insurer’s bundle, p 7.
29.The insurer’s internal review maintained the declinature of a further seven physiotherapy sessions with David Naylor. After a detailed summary of the material, the insurer noted that there were 31 sessions of physiotherapy throughout 2020 and 14 sessions of exercise physiology from 28 October 2020 to 11 March 2021. Six of the sessions in late 2020 were held concurrently.
30.The insurer accepted that the proposed physiotherapy treatment related to the motor accident. In relation to the issue of reasonable and necessary, the insurer stated:[14]
“As you have already been provided with concurrent Physiotherapy treatment sessions and Exercise Physiology treatments sessions with the stated goal to transfer to Exercise Physiology, I do not believe based on the evidence further Physiotherapy treatment sessions are reasonable and necessary.”
[14] Insurer’s bundle, p 22.
31.In relation to the issue of recovery, the insurer noted that the treatment to date had not improved capacity.
Insurer’s submissions dated 20 May 2021[15]
[15] Insurer’s bundle, p 1
32.The insurer submitted that a further seven physiotherapy sessions are not reasonable and necessary and will not improve recovery. It noted that the claimant has undergone 31 sessions of physiotherapy treatment and 19 exercise physiology treatment sessions. There were six concurrent sessions of physiotherapy and exercise physiology “to facilitate the transfer from Physiotherapy to Exercise Physiology”.[16]
[16] Insurer’s bundle, p 2.
33.It was noted that the claimant’s capacity over the period of the treatment has remained unchanged. It was submitted that the physiotherapy has not assisted the claimant in her return to work and “is not demonstrating effectiveness in accordance with [clause] 4.77 of the Motor Accident Guidelines”.[17]
[17] Insurer’s bundle, p 3.
Insurer’s submissions dated 18 July 2022[18]
[18] Insurer’s bundle, p 5.
34.The insurer submitted that Medical Assessor’s determination contained no material error, and the certificate was incomplete as opposed to showing error.
MATERIAL BEFORE THE REVIEW PANEL
35.The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
Pre-motor accident records
36.There is no evidence of prior symptoms.
Post motor accident
37.The claimant attended Dr Christopher Ogonowski on the day of the motor accident. The clinical notes record:[19]
“MVA; fall onto backside/soft tissue injury l, lower back; graze L forearm and L backside; hyperextension injury upper trapezius bilaterally
MVA 16/1/20; Patient stationary on scooter at intersection; struck from back and right by car driver; caused her to fall backwards and land on backside and L arm; scooter slid out from under her from the force of impact; grazes L medial forearm; graze on L backside; tore her dress’ clean graze backside; L looks clean.”
[19] Claimant’s bundle, p 87.
38.Initial certificates referred to soft tissue injury to back, various grazes, hyperextension injury to the neck and anxiety with elements of post-traumatic stress disorder (PTSD).[20] Physiotherapy was recommended with Bondi physiotherapy.[21]
[20] Claimant’s bundle, p 74.
[21] Claimant’s bundle, p 46.
39.A claim form dated 17 January 2020 referred to injuries including various grazes, pain in the neck and shoulder, headaches and bruising on the right side of the back.[22]
[22] Claimant’s bundle, p 39.
40.An Activities of Daily Living Assessment report dated 25 May 2020 recommended the provision of assistance for domestic cleaning.[23]
[23] Insurer’s bundle, p 37.
41.An X-ray of the cervical spine dated 18 June 2020 is reported as normal except for mild narrowing at C4/5.[24]
[24] Insurer’s bundle, p 25.
42.A referral by Dr Sabine Fieuw-Makaroff to Dr Wellings dated 30 July 2020 noted pain from neck radiating to head with heightened anxiety and symptoms of PTSD.[25]
[25] Claimant’s bundle, p 81.
43.In a report dated 12 August 2020 Mr David Naylor, physiotherapist reported that the claimant had:[26]
“[G]radual improvement of ongoing cervical spine and upper thoracic pain associated following MVA January 2020. Simone continues to report headaches and neck pain, though intensity duration and frequency are easing with treatment and interventions.”
[26] Claimant’s bundle, p 68.
44.An MRI scan of the cervical spine and brain dated 7 September 2020 was reported as normal with no evidence of cervical spine injury or spondylosis.[27]
[27] Insurer’s bundle, p 26.
45.In September/October 2020 the physiotherapist recommended treatment by an exercise physiologist in addition to physiotherapy.[28]
[28] Insurer’s bundle, p 14, p 28.
46.In a report dated 18 January 2021[29], Dr Tom Wellings, neurologist, noted that scan of the cervical spine and brain showed no significant abnormality and neurological assessment was “unremarkable”. The doctor opined that Ms Rosenbauer had “postconcussive syndrome”.
[29] Claimant’s bundle, p 72.
47.In a further report dated 29 June 2021, Dr Wellings stated:[30]
“She continues to have significant symptoms of fogginess, cognitive clouding and other symptoms typical of postconcussive syndrome. She continues to have a lot of anxiety and catastrophising around her symptoms and whether she will be able to work, and unfortunately this anxiety is feeding back into her existing migraine and the intensity of her symptoms.”
[30] Claimant’s bundle, p 109.
48.Dr Wellings recommended continued treatment through Ms McPherson.
49.Dr Mark Russo, physician provided a report dated 6 May 2021.[31] The doctor reported that psychometric testing indicated adverse cognitive and behavioural responses to persistent pain with underlying depression. He reported severe catastrophising present on the pain catastrophising scale. The claimant was reported that she did not feel that physiotherapy was “making much progress”. Examination showed “little to find” save as to tenderness on palpation over the greater occipital nerve bilaterally.
[31] Claimant’s bundle, p 99.
50.Dr Russo made a number of recommendations including further physiotherapist review by somebody with experience in post-concussive syndrome. A referral was made for the claimant to see Lisa McPherson for assessment.
51.In a further report dated 18 August 2021 Dr Russo recommended ongoing physiotherapy.
52.Mr Naylor provided a further report dated 12 April 2021 noting treatment since
27 February 2020.[32] The physiotherapist noted slow resolution of symptoms and subsequent referral to exercise physiology. Mr Naylor stated:“Physiotherapy has been beneficial both in objective measures and self-reporting for treatment of the above injuries in point 1. In view of the gradual improvement since initial presentation Physiotherapy may be seen to be beneficial in treating some of the above injuries.”
[32] Claimant’s bundle, p 70.
53.Ms Lisa McPherson provided a post-concussion syndrome assessment summary dated 26 May 2021 for a program expected to conclude in December 2021.[33]
Ms McPherson noted reduced eye, head and gaze control, poor reading and poor balance and recommended 12 physiotherapy consultations and referral for psychological treatment.[33] Claimant’s bundle, p 102.
54.A physiotherapy request from Ms McPherson dated 27 September 2021 for eight sessions of physiotherapy to manage persistent neck pain, global headaches, vertigo, blurred vision, poor balance, loss of reading capacity, increased fatigue, poor sleep, poor tolerance of aerobic exercise and poor oculomotor, head and gaze control. Post concussion syndrome was diagnosed.
RE-EXAMINATION
55.The Panel determined that Ms Rosenbauer be examined by Medical Assessor Kenna. The Medical Assessor’s report is as follows:
“Ms Rosenbauer attended the assessment unaccompanied.
Pre-accident medical history and relevant personal details
Ms Simone Rosenbauer is a 44-year-old female, currently in a defacto relationship, and has one child aged five years of age.
She acknowledged that she was involved in the motor vehicle accident on
16 January 2020, a period now of almost three years ago.
Prior to the motor vehicle accident, she states her health was very good and she was a teacher in photography, as well as an artist.
Following the motor vehicle accident (diagnosed with concussion), she states she is not able to now work as an artist. She does some administration in an art gallery and she has also quit photography.
Nevertheless, she acknowledges she has done a range of activities over many years, including also an artist residency.
Physio treatment
With regards to the issues in question, she acknowledges she has had extensive treatment to date and although vague initially, when pressed she acknowledged she has had at least 50 such sessions; 31 of physio and 19 of exercise physiology.
That although her condition was considered to be minor, that ongoing funding occurred as there was a statement from the physiotherapist that in actual fact there was ongoing continuous improvement, although progress was slow.
There was some confusion about funding but I gained the general impression that possibly the exercise physiology had been funding by the insurer in transition from physio. That she had had well over 12 months of physio and that she in part had funded such, although that was unclear. She states, however, over the last two years she self-managed treatment, as she needs that treatment, although the insurer has declined continuance of ongoing physio.
It appears that the number of physio sessions is well north of 50 as further treatment has continued unabated for a further 18 months.
Current symptoms
When asked about such, she states that her complaints relate to pain related to the neck with referral to both upper trapezii, referral into the interscapular region but upper region of the thoracic spine, suboccipital pain and occipital headaches.
Pertaining to the lower back, she complains of central pain and radiation into the left lower extremity, as far as the ankle and foot, with some concentration around the knee.
In that respect, she states also accompanying this, she has balance issues and finds relief from physio with regards to muscle tightening which can precipitate headaches.
That she remains under a neurologist, Dr Tom Wellings of Newcastle. She no longer sees Dr Russo of the Newcastle Pain Clinic.
Clinical Examination
General presentation
Findings on clinical examination including specific measurements of ROM (where applicable) of each of the injuries assessed.
She sat comfortably during the history taking and then moved to the couch and appeared to have no difficulty in sitting on the couch.
We discussed the pain pattern which I noted above.
Starting with the cervical spine, she was only prepared to move but in a symmetrical pattern, demonstrating no more than a 40% range of movement in rotation, flexion, extension and side bending, but I noted that there was no intrinsic muscle spasm or guarding on ballottement whilst active movement occurred.
Nevertheless, I noted there was also complete absence, despite the tightness, of any trigger points, although significant lowering of pain threshold was noted, i.e. very much a pain focus.
Clinically, there was no neurological deficit in either upper limb and she demonstrated reasonable range of movement of approximately 140° and 150° of flexion abduction. All other movements were normal, with a complaint of tightness involving the neck and upper trapezii.
On palpation of the cervical spine, despite lowering of pain threshold, there was no intrinsic muscle spasm present as noted, nor trigger points involving either levator scapulae or upper trapezii.
The movements were repeated on a number of occasions and I thought there was a fairly marked degree of inconsistency on repetition.
Nevertheless, pertaining to both the cervical and also lumbar spine, she demonstrated restricted range of movement, again uniformly decreased by approximately 30%, but there was no neurological deficit involving either lower limb. Reflexes, power and sensation were all intact, although once again one noted on ballottement of the lower lumbar spine, there was no muscle spasm present, although there was lowering of pain threshold, with inconsistency on repetition of range of movement.
Associated with such, there was tenderness involving the bony points of the acromioclavicular joint, sternoclavicular joint and medial knee, indicating the presence of an overlying myofascial type syndrome.
Key points
There was inconsistency as noted between presentation and complaint of symptoms. Overall, she appeared to have functional range of mobility and the overall presentation presented very much more of a myofascial type presentation where there was no focal individual pathology, but an increased resting muscle tone was noted.
Now presents as a classic fibromyalgic type presentation with what I would consider is centralised presentation.
Physiotherapy
Currently, she is still attending physio on a weekly basis.
When asked about such however, she acknowledges with regards to its utility, physiotherapy and also combined with exercise physiology, that she acknowledges only short-term benefit or relief, subsequently requiring therefore a further visit one week later. She acknowledges, therefore, as such that there is no further progressive improvement despite continuation of such therapy.
This is also in part acknowledged by the treating physiotherapy and exercise physiology reports.
When asked about self-management of her condition, there was great reluctance to consider such home-based exercises etc, as she stated that she was too busy in her life to be doing other activities and she was reliant therefore on physiotherapist or exercise physiologist to facilitate treatment, i.e. therefore acknowledging that she was very much focused on a passive approach.
From that perspective, she acknowledged she was greatly reluctant to be prepared to self-manage her condition from this point on. When asked about such, one gained the distinct impression that this wasn’t an approach that she would be prepared to facilitate.
In that respect, there has to be consideration of:
- a substantive amount of treatment
-acknowledgement that there is no further progressive improvement
- and also as noted in the report, very much a pain focus with regards to her clinical presentation.
The key points therefore to consider are:
-reasonable and necessary criteria
-relationship to the accident
- benefit to the claimant and appropriateness of service.
In that respect, with regards to relationship to the accident, almost three years have elapsed. She has had no operative procedures and acknowledges no further progressive improvement. This is not on a background of any pre-existent condition or previous accidents.
I note Dr Russo’s view is that this is very much a post-concussion type syndrome, as also acknowledged by Dr Wellings.
There has been no further subsequent accidents but she states there has been a substantive impact with regards to her professional career.
With regards to conflicting diagnosis, therefore there is underlying potential post-concussion syndrome, but also conflicting diagnosis is one of soft tissue injury from the motor vehicle accident (which the physio and exercise physiology has presumably addressed).
Hence at this point in time, some three post-accident, there is a weakening relationship to the accident.In relation to benefit to the claimant, she acknowledges there is no further progressive improvement.
It is not clear now how continuation of such physiotherapy and exercise physiology could be justified and would result in progression or maintain the claimant’s recovery or management.
With regards to outcome, there is inability to now delineate any progressive outcome of benefit with the provision of such treatment and there is certainly inadequate or insufficient documentation to support the ongoing continuance of this requested service, and also from the perspective that any continuance of the service would not be of benefit to the claimant.
Therefore, at this point in time, one has to also consider appropriateness of service. She has had over 50 treatments, not including I would presume further funding by herself over the last 12 months, with an acknowledgement that passive therapy has not resulted in any consistent improvement and any short-term improvement is back to square one, requiring a further treatment the following week. All of this is within the time frame of the placebo effect.
Furthermore, there has been an overlap of similar services between physio and exercise physiology, which would appear inappropriate in view of the fact that one was meant to initially progress from physiotherapy to exercise physiology and then progress to a self-maintenance program. That certainly has not appeared to be the case in this instance.
Hence, the current management and approach of passive therapy does not appear to be in keeping with current clinical practice or best practice guidelines and there is now good evidence that the requested service is not effective, as acknowledged by the claimant, as there is simply no further improvement.
Indeed, there appear to be contradictions for the service continuing, in view of the fact that she appears highly dependent upon a passive approach, with reluctance which she acknowledged to pursue other personal activities.
In that respect, the claimant made it clear that she wouldn’t necessarily be agreeable to anything other than continuance of the passive approach.
That being the case, I consider there is probably inappropriateness of provider now and one presumes it is continuing not on the basis of a utility, but on the basis that it is being funded, i.e. by the claimant or by the insurer. Discussions indicated that the claimant was disinterested in any changes to the current arrangement.
From the initial history taken prior to the clinical examination, there is acknowledgement that there was no further progressive improvement and taking into account the ongoing treatment, that this lacks a clinical and rehabilitative context for clinical justification for continuance.
One gained from the history the distinct impression that the treatment has long since reached the limits of its effectiveness and ongoing passive therapy is no longer justified.
When emphasised and discussed that she has acknowledged that she could be capable of self-managing her condition from this point on, there was a great reluctance to acknowledge such.
She hasn’t tried acupuncture and appears uninterested. She hasn’t tried a TENS machine and appears disinterested. Nor has she tried alternative manual therapy, such as osteopathy or chiropractic. All of which would be inappropriate now as almost 3 years have elapsed.
In view of the nature of her condition, she would as expected be a poor respondent to passive therapy type approach with physio or indeed possibly even exercise physiology. She has had a substantive amount of treatment to date and there is no doubt that such a therapeutic approach has long since reached the limits of its effectiveness.
When asked about taking over management of her condition rather than having physiotherapy on a weekly basis, even which she now self-funds, she indicates she wouldn’t be prepared to do such as she has a busy week and that this treatment therefore has to suffice, which is somewhat of a contradiction with her current request.
Comments
As noted, there is a range of other treatments which none of her therapeutic treaters have considered. In view of the nature of her overall presentation and post-concussive type syndrome, associated with the overall presentation, there is no doubt that physio and exercise physiology has long since reached the limits of its effectiveness.
It is no longer justified and in fact I would even consider that with regards to treatments of her musculoskeletal conditions, it is no longer relevant to the motor vehicle accident per se.
I believe she is capable of self-management of her condition and acknowledged reluctance or unpreparedness to do. I don’t consider that any continuance of ongoing physio or exercise physiology treatment will be any more effective or achieve any greater measure of functional improvement than what has been achieved to date.
Indeed, the surprising thing in some way is that she acknowledges there is no further improvement but wishes to continue with such. The treatment, therefore, is clearly inappropriate and is not reasonable and necessary.
That being the case, I would consider that with regards to physiotherapy, further physiotherapy treatment sessions (ie 7 sessions) for the cervical spine is neither reasonable nor necessary in the circumstances, nor will it improve the recovery of the injured person.
Similarly for the head (presumably headache), a further seven physiotherapy treatment sessions for the head is neither reasonable nor necessary in the circumstances, nor will it improve the recovery of the injured person or alter outcome.
Similarly with regards to the shoulders, that further physiotherapy sessions will not improve the recovery of the injured person and I don’t believe it is reasonable and necessary in the circumstances.”
FINDINGS
56.The Panel, comprised of 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[34] and Insurance Australia Ltd v Marsh.[35]
[34] [2021] NSWCA 287 at [40], [41] and [45].
[35] [2022] NSWCA 31 at [11], [21], [64].
57.The review is a new assessment of all matters with which the medical assessment is concerned.
58.Our findings on the nature of the injury sustained are based on a review of the clinical records, the Medical Assessor’s examination and medical reports in the context of using the specialist medical knowledge on the Panel.
59.The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accidents Compensation Act 1999 (MAC Act) in determining issues of causation. Particularly
ss 5D and 5E of the CL Act apply to the MAI Act[36]. In Raina v CIC Allianz Insurance Ltd[37] Campbell J stated:“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[36] See s 3B(2) of the Civil Liability Act 2002.
[37] [2021] NSWSC 13 (Raina) at [65].
60.These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAI Act.
Reasonable and necessary in the circumstances
61.Ms Rosenbauer 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”.
62.When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[38], Grove J stated:[39]
“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.”[38] [2003] NSWCA 52 (Clampett).
[39] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
63.Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[40]
[40] 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].
64.Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[41] 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.
[41] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
65.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”.
66.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”.
67.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”.
68.The Panel adopts the examination report prepared by Medical Assessor Kenna. We do not accept that further sessions of physiotherapy will be effective. The ongoing passive nature of the physiotherapy being undertaken lacked a clinical and rehabilitative context suggesting that further treatment would not be beneficial.
69.Despite the nominal cost and physiotherapy being a recognised form of treatment, we do not accept that the proposed treatment in this matter is necessary.
Did the treatment relate to the injury resulting from the motor accident
70.The question is whether the specified treatment “relates to the injury caused by the motor accident”.
71.The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[42] 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.
[42] [2018] NSWSC 1710 at [29] (Phillips).
72.The insurer accepted that the proposed treatment related to the motor accident. In these circumstances we do not address this matter given the absence of dispute on this issue.[43]
[43] See Wood v Insurance Australia Group Ltd [2022] NSWSC 1290.
Recovery
73.Given the absence of effectiveness of past physiotherapy treatment, we do not accept that a further seven sessions of physiotherapy will improve recovery.
CONCLUSION
74.For these reasons the certificates issued by Medical Assessor Shahzad are confirmed.
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