Rotella v AAI Ltd a/s AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Rotella v AAI Ltd a/s AAMI [2025] NSWPICMP 451
CLAIMANT:	Mario Rotella
INSURER:	AAI Ltd t/as as AAMI
REVIEW PANEL
MEMBER:	John Harris
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	11 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; accident in May 2017; minor rear end collision; chronic pre-existing cervical and lumbar spine symptoms; 40 distinct medical disputes on treatment and care before the Panel; absence of contemporaneous complaint and reference in claim form to lumbar injury; minor nature of accident; finding of no injury to the lumbar spine; Norrington v QBE Insurance (Australia) Ltd and Bugat v Fox referred to; complaint of increase in cervical spine symptoms within a week of motor accident; no pathological changes; physiotherapy over three months relieved condition; bilateral shoulder condition caused by neck injury; finding made that the accident caused a three months increase in cervical spine and shoulder symptoms; Held – Medical assessment revoked; findings made of reasonable and necessary and causation in respect of the 40 medical disputes.
DETERMINATIONS MADE:	1. The Review Panel revokes the certificate of Medical Assessor Shahzad dated 3 June 2024 and issues a new certificate determining that the following treatment and care for a period of three months: · general practitioner (GP) consultations monthly for the cervical spine and bilateral shoulders; · radiological scans for the cervical spine and shoulders; · pain killing medication for the cervical spine and shoulders, and · physiotherapy for the cervical spine and shoulders; is reasonable and necessary in the circumstances. 2. The following treatment and care for a period of three months: · GP consultations monthly for the cervical spine and bilateral shoulders; · radiological scans for the cervical spine and shoulders; · pain killing medication for the cervical spine and shoulders, and · physiotherapy for the cervical spine and shoulders; relates to the injury caused by the motor accident

REASONS

BACKGROUND

Mr Mario Rotella (the claimant) was involved in a motor accident on 26 May 2017. Mr Rotella was stationary in his motor vehicle when it was rear-ended by the insured vehicle.
The insurer is liable to pay Mr Rotella any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
There are multiple treatment medical disputes before the Panel. These disputes are set out later in these reasons.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[1] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Shahzad who issued a Medical Assessment Certificate dated 3 June 2024 (the Medical Assessment Certificate).[2] The Medical Assessor noted the development of tremors and other neurological abnormalities in mid-2023. The reasons on the motor accident causing any injuries were:[3]
“I note that the claimant had a long history of pain in the cervical spine, and lumbar spine and some shoulder symptoms prior to the motor vehicle accident, which is evident from his prior radiological scans, and medical records. He experienced symptoms from his cervical spine and lumbar spinal degenerative disease from time to time prior to the subject accident. I further note that the claimant did not report any injury to cervical spine, lumbar spine and bilateral shoulders at the time of his assessment at Bankstown/Lidcombe hospital on 27 May 2017, the day after the subject accident.
In my opinion, his lumbar spine, cervical spine and shoulder injuries predate the subject accident therefore, none of the treatment disputes are related to injuries caused by the accident.”
[2] Insurer’s bundle, p 11.
[3] Insurer’s bundle, p 33.
The Medical Assessor concluded that all treatment was either not reasonable and necessary or did not relate to the injuries caused by the motor accident.

THE REVIEW

The application 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 certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
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 63(2B) of the MAC Act.
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[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] 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 matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
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 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[10] In Raina v CIC Allianz Insurance Ltd[11] 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.”
[10] See s 3B(2) of the CL Act.
[11] [2021] NSWSC 13 (Raina) at [65].
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 MAC Act. The observations are still pertinent to the presently constituted Panel.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundles of documents in accordance with the initial Direction. On
12 November 2024 the Panel issued the following further Direction:
“The Panel has received the insurer’s bundle comprising 4432 pages and the claimant’s bundle comprising 152 pages.
We are also in receipt of the referral for medical assessment dated 24 October 2023 which list 40 distinct treatment and care disputes. We observe that some of the medical disputes are vaguely worded as to quantum and times and may not be capable of assessment.
The medical disputes at times otherwise conflate the issues of “reasonable and necessary” and “causally related” by including the separate disputes as one issue.
The Panel may comment on the drafting of the medical disputes when the reasons are delivered.
We assume that the medical disputes were drafted by the insurer. If this assumption is incorrect, the insurer, in its response to this direction, can correct that assumption.
The insurer is to file and serve further submissions by close of business 3 December 2024 separately addressing the 40 distinct disputes by reference to the documents it submits is essential to the findings for each dispute including reference to page numbers in the respective bundles.
The claimant is to file and serve his submissions by close of business, 17 December 2024.
These submissions will be the only submissions considered by the Panel.”
The insurer filed detailed submissions with particular emphasis on the extensive pre-accident medical condition.
[redacted]
The insurer otherwise did not make specific submissions addressing the 40 distinct medical disputes which were before the Panel.
The claimant filed short submissions but also did not address the 40 medical disputes.

SUBMISSIONS
Claimant’s submissions

The claimant alleged that the motor accident caused:
·        lumbar spine bulges at L3/4, L4.5 and L5/S1;
·        cervical spine bules at C3/4, C5/6 and C6/7;
·        left shoulder, and
·        right shoulder.
The claimant submitted that prior to the accident he received several forms of conservative treatment but after the accident the frequency of the treatment including specialist treatment and psychiatric consultations increased. It was asserted that the motor accident caused a substantial deterioration in the claimant’s health and is required ongoing treatment.
The claimant relied on the eggshell skull rule and submitted that the motor accident caused an aggravation/deterioration in new injuries as described by Dr Conrad in his report dated
18 October 2017.
The claimant submitted that he required future treatment including:
·        general practitioner (GP) consultations every month;
·        specialist review – every three months for five years;
·        radiological scans to monitor injuries;
·        pain killer medication;
·        pain clinic course, and
·        physiotherapy/hydrotherapy.

Insurer’s submissions

The insurer submitted that the claimant has an extensive pre-accident and unrelated medical history which is relevant to the determination of the disputes. Its detailed summary of the pre-accident records is contained in our discussion of the evidence.
The insurer noted that there were no neck and back complaint to the hospital the day after the accident (only headache) and the initial complaint to the GP was only to the neck and shoulder region.
The insurer referred to the qualified opinions of Mr Griffiths, Dr Smith and Dr Sekel and summarised these views. It also noted the opinion provided by Medical Assessor Truskett who found that the motor accident only caused a soft tissue injury to the cervical spine.

EVIDENCE
Pre-accident records

The GP records show that the claimant presented regularly from 2004 for prescription medication in relation to a number of health issues.[12]
[12] Insurer’s bundle, pp 2,199 - 2,636.
On 22 September 2005 the claimant complained of pain in the lower back radiating down the leg. A CT scan showed disc protrusions at L2/3 and L3/4. The claimant was referred to
Dr McKechnie and underwent MRI scans of the lumbar spine and cervical spine.
The claimant saw Dr McKechnie on several occasions between 2006 and 2012.[13]
[13] Insurer’s bundle, pp 3,788 – 3,798.
In a report dated 28 November 2008, Mr David Said, psychologist, noted various psychological symptoms and chronic neck and back pain.
On 7 August 2009 the claimant advised the GP that he was suffering from acute back pain and could not leave this house.
On 15 February 2010 the claimant saw Dr McKechnie for back and neck pain who recommended physiotherapy.
On 2 March 2011 Dr McKechnie noted the claimant was still complaining of chronic neck and back pain as was headaches.
A St George Hospital emergency discharge referral dated 16 April 2011 noted a history of limb pain with a history of being assaulted six years earlier and chronic neck and shoulder pain.
On 15 April 2011 the claimant presented to Bankstown Lidcombe Hospital complaining of neck pain and was treated with endone and morphine.[14] A CT scan of the cervical spine at that time showed multilevel degenerative spondylosis in the mid to lower cervical spine with foraminal narrowing due to uncovertebral joint arthrosis most apparent on the right at C5/6 and bilaterally at C6/7.[15]
[14] Insurer’s bundle, p 3,514 and p 3,537.
[15] Insurer’s bundle, p 4,105.
A St George Hospital physiotherapy discharge summary dated 18 April 2012 showed that the claimant had been treated for prior neck and lower back pain.
On 30 April 2012 Dr McKechnie noted persistent neck pain radiating across the shoulders and lower back pain radiating to the right hip and leg.
On 12 September 2012 the claimant presented to Lidcombe Hospital complaining of pain in the neck, back and right leg and was referred for MRI scans. MRI scans of the lumbar and cervical spine dated 12 September 2012[16] showed disc-osteophyte complex at multiple levels and moderate degenerative changes in the cervical spine and degenerative spondylitic changes on the margins of the lumbar vertebral bodies and disc osteophyte complexes at multiple levels in the lumbar spine.
[16] Insurer’s bundle, p 4,106.
A report of Mr Nazenin dated 13 September 2012 noted that he had reviewed the claimant’s treatment for chronic pain, pain disorder and depression. The claimant advised that this was caused by a workplace injury in 2005 when he had sustained injuries to his neck and back and he had not worked since that time.
On 29 October 2012 Dr McKechnie noted chronic neck and back pain. The doctor did not recommend surgical treatment and requested the claimant continue with pain management and recommended physical exercise.[17]
[17] Insurer’s bundle, p 3,787.
A neuropsychological assessment performed by Dr Chan on 9 November 2012 noted chronic pain, memory problems and paranoia.
Dr Liu, physician, on 11 October 2015 noted the claimant had various problems including chronic back and neck pain.
The records of the GP in September 2016 referred to the right-side lower back pain and leg pain.[18]
[18] Insurer’s bundle, p 4,267.
The GP record dated 30 January 2017 noted headaches, stiff neck and pain on top of the shoulders.[19] The claimant was then prescribed Baclofen 10 mg and Ibuprofen tablets 400 mg.
[19] Insurer’s bundle, p 4,266.

Post accident

The claimant presented to Lidcombe Hospital on 27 May 2017 complaining of “pain at the back of head”[20] and was referred to a CT scan of the head which was normal.[21] The claimant was discharged after short period. There is reference to “no C spine tenderness” and a history of chronic neck pain.
[20] Insurer’s bundle, p 3,747.
[21] Insurer’s bundle, p 3,745.
The claimant consulted his GP on 31 May 2017[22] who noted the motor accident five days earlier and presentation to hospital one day after the accident. The GP noted “increased pain neck and shoulders” and provided a medical certificate[23] which only refers to neck and shoulder pain.
[22] Insurer’s bundle, p 4,265.
[23] Insurer’s bundle, p 2,192.
The claim form dated 1 June 2017 only referred to neck and shoulders.[24]
[24] Insurer’s bundle, p 2,189.
On 16 June 2017 the GP provided a referral for the claimant to see Dr McKechnie.[25]
[25] Insurer’s bundle, p 4,265.
The GP provided a report dated 23 July 2017[26] where he advised that he first saw the claimant after the accident on 31 May 2017 with complaints of pain and stiffness in the neck, shoulders and tension headache and diagnosed whiplash injury. The GP stated:
“The last time I saw Mr Rotella was on 06/07/2017. His neck symptoms have improved with the help of physiotherapy. There was a flare up of his lower back pain possibly also due to the cold weather change. It seems he is still suffering from symptoms of whiplash injury as result of this accident and flare up of his previous injuries sustained in August 2005. A referral letter was given to him to be reviewed again by his usual neurosurgeon Dr Simon McKechnie who he has been seeing since 2005.”
[26] Insurer’s bundle, p 2,193.
The GP otherwise noted a chronic neck injury following assault in August 2005.
On 14 July 2017 Dr McKechnie noted he had last seen the claimant some five years previously and noted a history of residual pain which was mild and well-controlled until the recent motor accident.[27] The doctor noted that the claimant suffered from neck pain radiating to both shoulders and low back pain.
[27] Insurer’s bundle, p 3792; claimant’s bundle, p 123.
The claimant commenced physiotherapy in June 2017.[28] The initial physiotherapy records only refer to neck pain radiating to the shoulders.[29] Lower back pain is first referenced on
[28] Claimant’s bundle, p 146.
[29] Claimant’s bundle, pp 140-146.
4 July 2017 after seven sessions of physiotherapy. On 28 August 2017 the physiotherapist opined that there was no further place for physiotherapy.
The MRI scan dated 25 July 2017 noted degenerative changes in the neck, multi-level disc budling and disc osteophytic changes in the lumbar spine.[30]
[30] Claimant’s bundle, p 121.
On 21 August 2017 Dr McKechnie noted the claimant was “clinically unchanged with back and neck pain”[31] and that the MRI scan showed multiple small disc protrusions.
[31] Claimant’s bundle, p 120.
On 31 August 2017 Dr McKechnie noted the claimant walking slowly with the aid of a stick.[32]
[32] Insurer’s bundle, p 3,816.
The claimant attended St George Hospital at 7.40am on 1 September 2017 when he complained of pain in the neck, shoulders and back since the motor accident which had been exacerbated when he “went out dancing last night”.[33] The hospital records otherwise note:[34]
“Chronic neck pain
Details:
According to pt he has had chronic neck and shoulders pain for many years
Pain has been worse over last few days
….
Background:
Assault in 2005 – cervical + lumbar #”
[33] Insurer’s bundle, p 3,494.
[34] Insurer’s bundle, p 3,495.
On 22 November 2017 the claimant presented to the emergency department after feeling dizzy and suffering a fall.
On 26 February 2018 Dr McKechnie advised that the claimant was clinically unchanged, and a recent bone scan did not demonstrate active facet joint inflammation. The doctor recommended pain management counselling and psychotherapy.

Qualified opinions

Mr Griffiths is a biomechanical engineer qualified by the insurer. Based on his assessment of the photographs[35] of the damage to the vehicles, Mr Griffiths opined that this was a low velocity accident at less than 5kmph that could not cause physical injury.[36]
[35] Insurer’s bundle, pp 3393-4.
[36] Insurer’s bundle, p 4028.
Dr Smith was qualified by the insurer and provided a report dated 14 September 2017.[37] The doctor opined that the motor accident caused an exacerbation of cervical and lumbar degenerative disease which lasted a day or two and up to three months at most.
[37] Insurer’s bundle, p 4030.

Dr Sekel was qualified by the insurer and provided a report dated 17 July 2019.[38] The doctor described the accident as minor which did not result in any significant or permanent injury, not even a soft tissue injury. He opined that even if it caused a soft tissue injury, it would have resolved within a few hours, days or a maximum of six weeks.
[38] Insurer’s bundle, p 4059.
Dr Conrad was qualified by the claimant and provided a report dated 18 October 2017. The doctor noted that the claimant had a pre- accident back condition with “no major problems with his back” and back pain had “settled” prior to the motor accident. The doctor concluded that the accident caused a whiplash injury to the back and neck with radiating pain to both shoulders.

Claimant’s statement

The claimant provided a statement dated 4 April 2019.[39] He stated that the motor accident caused back, and bilateral shoulder pain, headaches and he went to Bankstown Hospital and attended Dr Chen one week later for neck and shoulder pain.
[39] Claimant’s bundle, p 1.
The claimant stated that prior to the accident he was fit and well, socialised doing dancing at St George Leagues Club. He tried this on one occasion after the accident, but this aggravated his problems.

Other medical assessment

Medical Assessor Truskett provided a certificate dated 4 April 2018 on the issue of the extent of permanent impairment caused by the motor accident.[40] The Medical Assessor opined that there was long-standing history of neck, back and shoulder pain, that the accident was relatively minor and initial assessments contemporaneous to the injury focused on neck pain. The Medical Assessor found that it was conceivable that the claimant sustained a whiplash injury to the neck described as a “soft tissue injury”.
[40] Insurer’s bundle, p 4,143.
The Medical Assessor did not assess any permanent impairment of the injury to the cervical spine.

RE-EXAMINATION

Mr Rotello was examined by Medical Assessor Gibson. The examination report is as follows:
“Mr Rotella was accompanied to the assessment by a NAATI interpreter (No.650). The interpreter was initially over the phone, as he had been delayed, but he later arrived at the assessment.
PRE ACCIDENT MEDICAL HISTORY
Mr Rotella had injured his neck, back and right leg when he had been assaulted in August 2005. At that stage he was recorded as having right C6 nerve root compression and osteoporosis with crush fractures L1 and L2. When asked about this, Mr Rotella maintained that this issue was ‘fixed’ by the physiotherapist, and any neck, back or shoulder pains had settled at least 5 years before the subject accident.
His medical history included Type 2 diabetes, glaucoma, hypercholesterolaemia, gastro-oesophageal reflux disease, hernia, diverticular disease, benign prostatic hyperplasia depression and hypertension.
Nevertheless, Mr Rotella maintained that he was fit and well prior to the subject accident. He was taking no medication at all. And he ascribed all his current symptoms to the subject accident.
He said he was diagnosed with thyroid disease about 2-3 years after the accident, but he doesn’t require any medication for this condition. He couldn’t recall seeing a specialist.
He had had an endoscopy at St George Private Hospital 2-3 years after the subject accident. He understood there were no concerns.
RELEVANT PERSONAL DETAILS
Mr Rotella is an age-pensioner. In the past he had worked in the construction industry as a crane driver, stonemason, transmission linesman, rigger, scaffolder and dogman. He also had his own bathroom renovation business, and so was involved in plumbing, tiling, electrical and handyman tasks.
He is divorced and lives in a single-storey two-bedroom, one-bathroom house. He said there are 5-6 steps to climb when entering the rear of the residence.
He said that he is in receipt of fortnightly cleaning assistance which is partially funded by an age-care provider and partially self-funded. He said the cleaner has been coming in over the last 12 months and they clean the floor, kitchen and bathroom, make the bed and at times help out with the laundry.
He said prior to that he had a private cleaner ($200 per session for 4-5 years).
He has a gardener do his lawns fortnightly, and this has been the case since the subject accident. He said he had never required this sort of assistance prior to the subject accident. And added that he had purchased an Aldi lawn mower a short time before the accident, but since then he has been unable to use it.
He said he mainly eats ‘junk food’ at home, so doesn’t do much in the way of cooking.
On specific questioning, he said there was no other domestic or personal assistance received.
Mr Rotella said that prior to the subject accident he was active in ballroom dancing and was teaching this on a pro bono basis. He also ran a bushwalking group.
He said he had about 30,000 Facebook followers. He was also involved in website design and computer assembly and repair.
Overall, he described having a ‘very active life’ prior to the subject accident.
HISTORY OF THE SUBJECT ACCIDENT
Mr Rotella had been driving a 1982 Commodore sedan along Belmore Rd in Riverwood. He had stopped at a red light near a pedestrian crossing when his car was hit from behind by another vehicle travelling at speed. He said his head was thrown forward and backwards with the impact. Fortunately, he had applied his brakes when he realised there was a likely impact and he had also maintained a good distance from the car in front, so there was no front-end impact.
Following the accident he had contacted Riverwood Police, but no one attended, and no ambulance arrived. Mr Rotella said that the driver at fault had initially offered to pay damages but had then absconded.
Mr Rotella had then driven his car home, but in retrospect he felt this had probably been unwise as it was later found there was severe damage to the suspension and the boot had to be replaced. He added that as it was a vintage car it couldn’t be repaired through the provider the insurer suggested, so he had to contribute at least partially.
He said by that evening he noticed pain in his neck, back and shoulders (he indicated the trapezius regions bilaterally). He attended Bankstown-Lidcombe Hospital where he had reported complaints of pain over the back of his head and his upper cervical spine.
He had come under the care of his regular general practitioner at the time who was based at the Riverwood Plaza Medical Centre.
When asked about the lack of mention in the clinical notes of any low back pain in the period after the accident, he maintained that whilst he couldn’t recall precisely, he felt the back pain had come on some weeks later.
Mr Rotella was later referred to neurosurgeon, Dr Simon McKechnie, who he had visited on 12 July 2017. Dr McKechnie had commented on Mr Rotella's complaints of low back pain and neck pain spreading to the shoulders and into the back of his head.
MRI scanning of the cervical and lumbar spine had shown degenerative changes with disc bulges and osteophytic encroachment and facet arthropathy in the lumbar spine.
Mr Rotella said that Dr McKechnie had advised against any surgical procedures to the spine. He thinks he had visited him on about 6-7 occasions, with the last visit being several years ago.
He was referred to a second neurosurgeon, Dr Saeed Kohan, at St George Hospital. He thinks he had one visit on 15 August 2019. There was potentially another visit scheduled, but for some reason Mr Rotella said that he was charged $400 although didn’t get to see the doctor. Dr Kohan had also advised against him having any surgical procedures to his spine.
There were no further visits planned with either Dr McKechnie or Dr Kohan.
He said that he visited a neurologist in 2023/2024 over a six-month period due to dizziness, falls and general body stiffness but the neurologist had subsequently retired. He may have been referring to Dr Paul Teychenne.
Over the years was referred for physiotherapy treatment.
CURRENT COMPLAINTS
At the time of the assessment Mr Rotella felt his main symptom was headache. He said the pain is of variable severity and is present 24 hours a day. The pain starts at the occiput and spreads to his neck, then into both shoulders and down into his back. He notices a click when turning his head. He finds nothing really helps much to relieve the pain, although he does get some relief from taking Panadol Osteo.
He notices numbness in his right upper limb on waking, and he described this as involving the entire limb.
There is low back pain with symptoms referred into the entire right lower limb. The distribution described did not follow a nerve root distribution. He said the back pain is right sided most of the time and he rated it at 10/10 severity (zero being no pain, ten being severe pain). He obtains some relief by using chilli patches he buys from an Asian grocer as this reduces his pain to 6-7/10 severity. He notices some weakness of his right leg with giving way when walking.
CURRENT TREATMENT
Mr Rotella takes between two and four Panadol Osteo tablets per day for headache, to assist with sleep and for relief of generalised body stiffness. He also takes 10mg amitriptyline at night.
There was no other medication for pain.
His other regular prescribed medications were aripiprazole 15mg, candesartan 4mg, rosuvastatin 10mg, Jardiance 5mg and metoprolol 50mg. He also takes esomeprazole and betahistine. In addition, there were various vitamin supplements including vitamin D, magnesium and calcium.
Mr Rotella gets his medications in a Webster pack.
He said that over the last two months he has stopped attending Riverwood Plaza Medical Centre and now sees Dr Morgan Jacob at Riverwood Medical Centre. My understanding was that he has stopped visiting the previous general practitioner because he had contributed to his driving licence being cancelled. This was because Mr Rotella was diagnosed with obstructive sleep apnoea and refused to use a CPAP machine as it made him uncomfortable.
He currently sees Dr Jacob on a weekly basis. When asked what occurs at these consultations, he said they discuss ‘different things’ and he is hoping Dr Jacob will be able to cease his esomeprazole and the medications that were prescribed by the psychiatrist, presumably aripiprazole and amitriptyline.
Mr Rotella said that he averages 5-6 visits to Riverwood Physiotherapy each year, with the majority of these covered through a Medicare Managed Care Plan. Although, last year, he had 10-20 visits. He said the physiotherapist treats his neck and lower back, and his last treatment was about a month ago.
When asked what he considers his main current problems, he said he is troubled by headache, right leg weakness and giving way and cognitive issues including concentration and memory loss.
PHYSICAL EXAMINATION
Mr Rotella was formally dressed in a business suit. He was right-handed and weighed 94kg and was 167cm tall.
He used a frame to mobilise. He said he had this aide for several years but prior to that was using two sticks. He seemed more concerned with dizziness when he was able to manage short distances without the walker. On specific questioning he said he hadn’t required any mobility aids prior to the subject accident. He was able to stand on toes and heels.
There was tenderness over the occiput but not elsewhere over head or neck. There was some tenderness over both trapezius regions.
On examination of the neck, there was two-thirds normal flexion and extension, normal lateral flexion bilaterally and three-quarters normal rotation bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, there was normal power, sensation and reflexes bilaterally.
On examination of both shoulders, movements were to full normal range bilaterally as were movements of elbows and wrists.
On examination of the spine, there was no tenderness. There was two-thirds normal flexion and extension, normal lateral flexion and rotation. There was no asymmetry, muscle spasm or guarding.
Straight leg raise was 45° on the right due to right hip and groin discomfort and 60° on the left.
Lower limb power and reflexes were normal and symmetrical. There was global reduction in sensation over the right lower limb but otherwise normal.
SUMMARY AND CONCLUSIONS
Mr Rotella maintained that he was in perfect health prior to the accident with no musculoskeletal pains for at least 5 years prior. When asked about the entries in the clinical notes of his doctors, in particular the general practitioner records, he said he couldn’t recall having symptoms at those times.
Based on the history and clinical findings, Mr Rotella had sustained soft tissue injury to his head and cervical spine. There had been referred pain toward the trapezius regions bilaterally, but no specific injury to either shoulder.
There was no convincing evidence of a low back injury relating to the subject accident.
I asked Mr Rotella specifically about pain clinic visits. He said that he had attended Liverpool Hospital Pain Clinic up until 2012. From what he described it appears he had participated in a pain program which provided him with strategies to deal with his symptoms. He said that 6 months ago, he was assessed at a pain clinic at Canterbury Hospital. He was apparently advised to have hydrotherapy and physiotherapy, but he hasn’t managed to attend any sessions due to lack of transport.”

REASONS

The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. 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[41] and Insurance Australia Ltd v Marsh.[42]
[41] [2021] NSWCA 287 at [40], [41] and [45].
[42] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessors’ examination report and adds the following further reasons.

Lumbar spine injury

We do not accept that the motor accident caused an injury to the lumbar spine. We have considered the claimant’s submissions of the egg-shell skull principle and that an injury can occur by way of aggravation of the underling pre-existing condition.
There is no record of complaint of injury to the lumbar spine at the hospital on the day following the accident, to the GP five days after the accident and in the claim form dated 1 June 2017. The absence of contemporaneous complaint is relevant but not determinative to the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[43] and AAI Ltd v McGiffen.[44]
[43] [2021] NSWSC 548 (Norrington).
[44] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[45] Logically, the absence of reference of a body part alleged to be injured and omitted in the claim form must be relevant to whether that body part was injured.
[45] [2014] NSWSC 888 at [31]-[32].
The initial physiotherapy treatment was restricted to the cervical spine and radiating into the shoulders. The absence of recorded treatment to the lumbar spine supports our conclusion.
We accept, based on Dr Griffiths’ conclusion, that this was a low-speed impact. We do not accept his opinion that there could not be any injury as this is probably outside his area of expertise. However, there is protection to the lumbar spine from the seat and any injury to that body part in this type of collision is extremely unlikely.
The report of the GP dated 23 July 2017 does not support a finding that the motor accident caused a lumbar spine injury. The GP references the onset of lumbar spine pain in the context of cold weather as opposed to a contemporaneous onset following the motor accident.
When questioned about the absence of reference to the lumbar spine in the contemporaneous notes, the claimant advised Medical Assessor Gibson that low back pain may have developed several weeks later. Again, this reflects a lack of clear recollection of the development of lumbar spine symptoms following the motor accident.
The pre-accident medical evidence, summarised earlier, supports a chronic low back condition which explains the symptomatology following the accident. We note the claimant’s denial of pre-accident symptoms for five years prior to the motor accident and his subsequent explanation that he could not recall various complaints in the pre-accident records. We prefer and accept the clinical records showing that the claimant suffered from a symptomatic pre-accident lumbar spine condition which did not resolve prior to the motor accident. In these circumstances the symptomatology after the motor accident is explained by the pre-accident condition.

Cervical spine injury

The claimant suffered from a chronic cervical spine injury with symptoms up to the accident despite the claimant’s contrary statement evidence. We rely on our comments for rejecting the claimant’s recollection in denying pre-accident symptoms for the lumbar spine as equally applying to the cervical spine.
There was no recorded complaint at hospital of cervical spine pain on the day after the motor accident. The examination of the cervical spine at that time was that there was “no C (cervical) spine tenderness” and a history of chronic neck pain. This suggests that there was no onset of immediate pain up to 24 hours and suggestive of only a soft tissue strain developing over the days and leading to the complaint to the GP some days later.
The claimant suffered from extensive degeneration in the cervical spine. The cervical spine is less protected from a rear end collision and low speed motor accidents may exacerbate a chronic condition. We do not agree with Mr Griffiths contrary opinion that no cervical spine injury could occur as he is not a medical practitioner. Other medical practitioners qualified by the insurer accept that the motor accident may have caused a short-term exacerbation of cervical spine pain.
The Panel’s interpretation of the radiology does not show that the motor accident caused any aggravation of the pre-extensive degeneration in the cervical spine.
The GP in his report dated 23 July 2017 noted the claimant’s cervical spine condition had improved with physiotherapy. On 28 August 2017 the physiotherapist opined that there was no further place for physiotherapy. These comments suggest a short-term aggravation only of the exacerbation caused by the motor accident.
The claimant is recorded as attending Dr McKechnie in late August 2017 with a walking stick. The following day the claimant attended hospital after exacerbating his condition dancing the previous night. These histories are entirely inconsistent in terms of presentation.
We accept that the motor accident caused an exacerbation of chronic cervical pain with residual symptoms for approximately three months. That conclusion is consistent with the minor nature of the motor accident and absence of cervical spine symptoms at hospital on the day after the accident, the report of the GP dated 23 July 2017 that the condition had improved with physiotherapy, the comment of the physiotherapist in late August 2017 that there was further place for psychotherapy, and the absence of radiological evidence of a deterioration in the condition. On the nature and extent of the injury to the cervical spine our findings generally accord with those provided by Medical Assessor Truskett.

Bilateral shoulder condition

The claimant has a pre-accident chronic cervical spine condition with radiating symptoms to the shoulders. For the reasons expressed above, we are satisfied that there would have been a short-term exacerbation of the cervical spine pain which likely caused further radiating pain into the trapezius. The extent of the exacerbation of shoulder pain is dependent upon the duration of the exacerbation to the cervical spine.
There is no plausible medical explanation that a motor accident at low speed of up to 5kmph could have caused direct injury to either shoulder. The claimant’s explanation otherwise does not describe trauma to the shoulders. We do not accept that the motor accident caused injury to either shoulder.

Basic principles – medical treatment

The medical disputes relate to whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[46] The MAC Act otherwise characterises the medical disputes as separate issues.[47] The wording of some of the medical disputes does not appreciate this concept.

[46] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].

[47] S 58(1)(a) and (b) of the MAC Act.

Causation of need for treatment

The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[48]
[48] [2018] NSWSC 1710 (Phillips) at [29].
Some of the medical disputes confuse the separate issues by combining issues of causation with the issue of “reasonable and necessary”.

Reasonable and necessary

Mr Rotella 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,[49] Grove J stated:[50]
“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.”
[49] [2003] NSWCA 52 (Clampett).
[50] 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.[51]
[51] 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.[52] 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.
[52] See Diab v NRMA Ltd [2014] NSWWCCPD 72 (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.
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 the issue of whether treatment “relates to the injury caused by the accident”.

The various medical disputes

Considering our findings on the extent of any injury we provide responses to the following medical disputes.
Whether GP consultation every month for the lumbar spine is causally related to the injury sustained in the subject accident
We refer to our findings of absence of lumbar spine injury. There is no causal connection.
Whether GP consultation every month for the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident
It is unnecessary to answer this question as no lumbar spine injury was sustained.
Whether radiological scans for the lumbar spine is causally related to the injury sustained in the subject accident
We refer to our findings of the absence of lumbar spine injury. There is no causal connection.
Whether pain killing medication for the lumbar spine is causally related to the injury sustained in the subject accident
We refer to our findings of the absence of lumbar spine injury. There is no causal connection.
Whether pain clinic consultations for the lumbar spine is causally related to the injury sustained in the subject accident
We refer to our findings of the absence of lumbar spine injury. There is no causal connection.
Whether physiotherapy for the lumbar spine is causally related to the injury sustained in the subject accident
We refer to our findings of the absence of lumbar spine injury. There is no causal connection.
Whether Past domestic assistance on a gratuitous basis from 26 May 2017 to 28 June 2018 for 8 hours per week is causally related to the injury sustained in the subject accident
We refer to our findings of the duration of cervical spine injury which did not exist for the entire thirteen-month period. The answer to the question as drafted is no. Whether gratuitous care was causally related for a different period was not asked.
Whether Past domestic assistance on a gratuitous basis from 26 May 2017 to 28 June 2018 for 8 hours per week is reasonable and necessary in relation to the injury sustained in   the subject accident.
We refer to our findings of the duration of cervical spine injury and the absence of lumbar spine injury. It is unnecessary to answer this question as drafted. Whether gratuitous care was reasonable and necessary for a different period was not asked.
Whether future commercial assistance for 4 hours per week for the remainder of the claimant life expectancy is causally related to the injury sustained in the subject accident
We refer to our findings of the duration of cervical spine injury which is no longer an ongoing condition and the absence of lumbar spine injury. The answer is to the question as drafted is no.
Whether future commercial assistance for 4 hours per week for the remainder of the claimant life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of the duration of cervical spine injury which is no longer an ongoing condition and the absence of lumbar spine injury. The answer is to the question as drafted is no.
Whether medical specialist consultation one visit ever three months for the next five years for the lumbar spine is causally related to the injury sustained in the subject accident
We refer to our findings of absence of injury to the lumbar spine. There is no causal connection.
Whether radiological scans for the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of absence of injury to the lumbar spine. There is no causal connection. It is otherwise unnecessary to answer the balance of the question.
Whether medical specialist consultation one visit ever three months for the next five years for the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident.
We refer to our findings of the absence of injury to the lumbar spine. There is no causal connection.
Whether medical specialist consultation one visit ever three months for the next five years for the cervical spine is causally related to the injury sustained in the subject accident
We refer to our findings of the duration of the cervical spine injury. There is no causal connection to future treatment.
Whether GP consultation every month for the bilateral shoulders is causally related to the injury sustained in the subject accident
We refer to our findings of the cause and duration of the increase of bilateral shoulder symptoms. GP consultations are causatively related for the duration of the condition caused by the motor accident.
Whether radiological scans for the bilateral shoulders is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of the cause and duration of the bilateral shoulder symptoms. It is reasonable and necessary to undertake initial scans to show that there was no further injury to the shoulders. The initial scans are a one-off at minimal cost, medically acceptable and appropriate investigations for the condition.
Whether medical specialist consultation one visit ever three months for the next five years for the bilateral shoulders is reasonable and necessary in relation to the injury sustained in   the subject accident
We refer to our findings of the duration of cervical spine injury and resultant bilateral shoulder symptoms. There is no causal connection to future treatment. It is unnecessary to answer whether such treatment is reasonable and necessary
Whether medical specialist consultation one visit ever three months for the next five years for the bilateral shoulders is causally related to the injury sustained in the subject accident
We refer to our findings of the duration of cervical spine injury and resultant bilateral shoulder symptoms. There is no causal connection to future treatment.
Whether pain killing medication for the cervical spine is causally related to the injury sustained in the subject accident
We refer to our findings of cervical spine injury. Pain medication following the motor accident is causatively related due to the increase in cervical spine symptoms.
Whether pain clinic consultations for the cervical spine is reasonable and necessary in relation to the injury sustained in the subject accident
Pain clinic consultation is not reasonable and necessary for an increase in cervical spine symptomatology over a short period. Appropriate treatment is physiotherapy and pain relief medication.
Whether pain clinic consultations for the cervical spine is causally related to the injury sustained in the subject accident
We do not understand that the claimant attended any pain clinic consultation for the period of the exacerbation of cervical spine pain. There is no causal relationship.
Whether GP consultation every month for the bilateral shoulders is reasonable and necessary in relation to the injury sustained in the subject accident
This question is too vague to answer as the duration of the treatment is not specified. Some initial consultations are related to the complaints of shoulder pain aggravated by the motor accident.
Whether physiotherapy for the bilateral shoulders is causally related to the injury sustained in the subject accident
We refer to our findings of injury to the cervical spine causing an increase in bilateral shoulder symptoms. Physiotherapy, the extent to which is undefined, and as undertaken by the claimant, relates to the injuries caused by the motor accident.
Whether physiotherapy for the cervical spine is reasonable and necessary in relation to the injury sustained in   the subject accident
This question is too vague to answer as the duration and extent of the treatment is not specified. Some physiotherapy is reasonable and necessary as it is an appropriate treatment for the exacerbation of cervical spine pain and the treatment is designed to reduce the increase in symptoms caused by the motor accident. The reports of the GP and the physiotherapist suggest that the treatment was effective.
Whether radiological scans for the bilateral shoulders is causally related to the injury sustained in the subject accident
We refer to our findings of injury to the cervical spine causing an increase in bilateral shoulder symptoms. Initial radiological scans, the extent to which is undefined, relates to the injuries caused by the motor accident.
Whether pain killing medication for the bilateral shoulders is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of injury to the cervical spine causing an increase in bilateral shoulder symptoms. Pain killing medication, the extent to which is undefined, relates to the injuries caused by the motor accident.
Whether physiotherapy for the bilateral shoulders is reasonable and necessary in relation to the injury sustained in the subject accident
This question is too vague to answer as the duration and extent of the treatment is not specified. Some physiotherapy is reasonable and necessary as it is an appropriate treatment for the exacerbation of bilateral shoulder pain for the purpose of reducing the increase in symptoms caused by the motor accident. The reports of the GP and the physiotherapist suggest that the treatment was effective.
Whether pain killing medication for the bilateral shoulders is causally related to the injury sustained in the subject accident
We refer to our findings of injury to the cervical spine causing an increase in bilateral shoulder symptoms. Medication, the duration and extent which is undefined, relates to the injuries caused by the motor accident.
Whether physiotherapy for the cervical spine is causally related to the injury sustained in the subject accident
This question is too vague to answer as the duration and extent of the treatment is not specified. The claimant underwent physiotherapy treatment from June to August 2017 causally related to the accident due to the increase in symptoms.
Whether GP consultation every month for the cervical spine is reasonable and necessary in relation to the injury sustained in the subject accident
This question is too vague to answer as the duration of the treatment is not specified. Consultations with the GP every month for the period of the exacerbation of the cervical spine pain relates to the motor accident.
Whether pain clinic consultations for the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident
The claimant did not sustain injury to the lumbar spine, It is unnecessary to answer this question.
Whether medical specialist consultation one visit ever three months for the next five years for the cervical spine is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of the duration of cervical spine injury. There is no causal connection to future treatment. It is otherwise unnecessary to answer this question.
Whether physiotherapy for the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident
The claimant did not sustain injury to the lumbar spine, It is unnecessary to answer this question.
Whether pain killing medication for the cervical spine is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of cervical spine injury. Pain killing medication is reasonable and necessary treatment for the effects of the increase in symptoms as it is low cost and of short duration. The question is otherwise vague and cannot be answered.
Whether GP consultation every month for the cervical spine is causally related to the injury sustained in the subject accident
We refer to our findings of the duration of cervical spine injury. Consultation monthly for the period of exacerbation is causally related to the motor accident.
Whether pain clinic consultations for the bilateral shoulders is reasonable and necessary in relation to the injury sustained in the subject accident
Pain clinic consultation is not reasonable and necessary for an increase in bilateral shoulder symptomatology which increased over a short period. Appropriate treatment is physiotherapy and pain relief medication.
Whether radiological scans for the cervical spine is causally related to the injury sustained in the subject accident
We refer to our findings of injury to the cervical spine. The claimant underwent initial scans which is related to the motor accident
Whether radiological scans for the cervical spine is reasonable and necessary in relation to the injury sustained in the subject accident
We refer to our findings of injury to the cervical spine. It is appropriate and medically acceptable treatment that the claimant undergoes radiological scans for the cervical spine to determine the nature and extent of any injury to that body part. The extent of such treatment is not defined and therefore the question is otherwise vague.
Whether pain clinic consultations for the bilateral shoulders is causally related to the injury sustained in the subject accident
We do not understand that the claimant attended any pain clinic consultation for the period of the exacerbation. There is no causal relationship.
Whether pain killing medication for the lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident
The claimant did not sustain injury to the lumbar spine. It is unnecessary to answer this question.

CONCLUSION

For these reasons the Medical Assessment Certificate dated 3 June 2024 is revoked. A replacement certificate is issued at the commencement of these Reasons.

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

Insurance Australia Ltd v Marsh [2022] NSWCA 31

[2025] NSWPICMP 451

11 April 2025