Sami v Insurance Australia Limited ACN 000 016 722 Trading as NRMA Insurance (Motor Accident Injuries)

[2021] ACAT 98

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SAMI v INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA INSURANCE (Motor Accident Injuries) [2021] ACAT 98

MAI 12/2021

Catchwords:               MOTOR ACCIDENT INJURIES – where liability accepted relevant insurer must pay benefits applicant entitled to – deciding if treatment and care expense is reasonable and necessary – expense must relate to injury or exacerbation suffered as a result of the motor accident – time elapsed between motor accident and onset of symptoms relevant

Legislation cited:        Motor Accident Injuries Act 2019 ss 66, 112, 113, 193, 197, 487

Subordinate

Legislation cited:        Motor Accident Injuries (Treatment and Care) Guidelines 2019 guidelines 6.4; 6.4.1; 6.4.2

Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 cl 6

Tribunal:Acting Presidential Member T Kyprianou

Date of Orders:  13 October 2021

Date of Reasons for Decision:      13 October 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          MAI 12/2021

BETWEEN:

SARVAN SAMI

Applicant

AND:

INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA INSURANCE

Respondent

TRIBUNAL:Acting Presidential Member T Kyprianou

DATE:13 October 2021

ORDER

The Tribunal orders that:

1. Pursuant to section 197 of the Motor Accident Injuries Act 2019 (MAI Act), the respondent’s internal review decision dated 15 April 2021 to deny liability for:

   (a)referral for MRI scan of the cervical spine;

   (b)facet joint injections to the cervical spine;

   (c)orthopaedic specialist review of the right knee;

   (d)the purchase of a portable exercise bike for treatment of the right knee;

   is amended as follows:

   (a)The decision denying liability for the cost of referral for an MRI scan of the cervical spine is set aside.

   (b)The decision denying liability for facet joint injections in the cervical spine is remitted to the insurer for reconsideration once the result of the MRI scan of the cervical spine and any medical opinion in relation to that result is available.

2. The decision denying liability for orthopaedic specialist review of the right knee and the purchase of a portable exercise bike is affirmed.

3. Pursuant to section 112(1)(a) of the MAI Act the respondent is to pay the cost of an MRI scan of the applicant’s cervical spine.

4. Pursuant to regulation 6(2) of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020, in relation to the applicant’s application for costs set out in the applicant’s submissions dated 2 September 2021, the applicant is given liberty to provide to the Tribunal and the respondent, within 10 days of the date of this order, an itemised statement with details of the costs incurred by the applicant.

5. The respondent is given liberty to give to the Tribunal and the applicant, within 5 days of receiving the applicant’s itemised statement of costs, submissions, if any, it wishes to make in relation to the costs order sought by the applicant.

6. Upon receipt of the above documents the tribunal will make an order in relation to the applicant’s application for costs.

   ………………………………..

Acting Presidential Member T Kyprianou

REASONS FOR DECISION

1. The applicant has applied for external review, under section 193 of the Motor Accident Injuries Act 2019 (the MAI Act), of a decision made by Insurance Australia Ltd trading as NRMA Insurance (the respondent) on 15 April 2021 (the reviewable decision). That decision confirmed the respondent’s original decision dated 24 February 2021 refusing liability for payment of treatment benefits requested by the applicant for injuries he claims he sustained as a result of a motor accident on 7 September 2020. The treatment benefits the reviewable decision refused were:

   (a)A referral for an MRI scan of the cervical spine with a view of determining whether a trial of CT guided facet joint injections to the cervical spine should be prescribed.

   (b)The potential facet joint injections.

   (c)A referral to an orthopaedic surgeon for review of a right knee injury.

   (d)The purchase of a portable exercise bike for treatment of the right knee at a cost of $39.

Background

1. The applicant was injured in a motor accident on 7 September 2020 in the Australian Capital Territory. The vehicle he was driving was stationary at traffic lights when it was hit from behind by a vehicle insured for motor accident injuries by the respondent.

2. The applicant was able to drive his car home. Later that evening he attended Queanbeyan District Hospital due to pain he was suffering.

3. The applicant lodged a personal injuries defined benefits application with the respondent dated 3 October 2020. He lists the injuries he sustained in the motor accident in that application as “shoulder, neck, chest, hips and back”. The respondent accepted liability for defined benefits and paid for a number of treatment expenses claimed by the applicant for the injuries he claimed he sustained as a result of the motor accident.

   The dispute leading to the application for review

4. At the recommendation of his general practitioner (GP), Dr Peter Davis, and a sports physician, Dr Peter Cole, the applicant requested to be referred to an orthopaedic surgeon for review of his right knee and to have an MRI of his cervical spine in order to determine whether he should have CT guided facet joint injections in his cervical spine. He applied to the respondent for approval of these treatment benefits. At the recommendation of his treating physiotherapist, Mr Matthew Chan, he requested the respondent to fund the acquisition of a portable exercise bike at a cost of $39 to assist with treatment of his right knee.

5. The respondent denied approval for these treatment benefits in a letter dated 24 February 2021. The applicant applied for an internal review of that decision under section 187 of the MAI Act. The respondent carried out the internal review and confirmed the original decision in the reviewable decision dated 15 April 2021. The reasons for denying liability for the defined benefits requested by the applicant set out in the reviewable decision are:

   (a)that the applicant’s right knee injury was not caused by the motor accident; and

   (b)that the MRI and facet joint injections for the cervical spine are not reasonable and necessary in the circumstances because the applicant has full range of movement in the cervical spine with no evidence of neurological signs to indicate nerve impingement.

6. Further reference is made in the reviewable decision to a published study which apparently concluded that there was no evidence available supporting therapeutic intra-articular cervical facet joint injections for chronic cervical facet joint pain arising out of motor accident injuries.

The medical evidence

Right knee

1. The applicant attended the Queanbeyan District Hospital emergency department (ED) on the day of the motor accident. The discharge letter from that attendance dated 8 September 2021 (page 20 of the documents lodged on 17 June 2021 in the tribunal by the respondent being the documents available to the decision-maker (MAI documents)) states that the applicant reported that he felt lower back pain with no lower back neuropathy immediately following the accident. He drove home after the accident and had worsening lower back pain. Upon presentation at the ED he had central chest pain.

2. On 14 September 2020, the applicant attended the Queanbeyan District Hospital ED again, this time by ambulance after he developed left sided chest pain following a walk in his garden.[1]

   [1] MAI Documents page 1

3. The applicant first attended his GP Dr Davis, for the injuries he sustained in the motor accident on 12 September 2020. Dr Davis’ notes for that consultation refer to spine and chest wall pain.[2]

   [2] MAI Documents page 241

4. During 2020 the applicant attended Dr Davis further in relation to the motor accident injuries on 2 October, 3 October, 30 September, 17 October, 26 October 27 October, 9 November, 9 December and 10 December 2020. According to Dr Davis’ notes the applicant first reported right knee symptoms to his GP on 9 December 2020.[3]

   [3] MAI Documents pages 241-244

5. Dr Davis referred the applicant for an MRI of his right knee which he had on 7 January 2021. In summary the MRI report records:[4]

   (a)Chronic bucket handle tear of the lateral meniscus with displaced meniscal fragment.

   (b)Severe lateral tibiofemoral joint OA. Moderate patellofemoral and mild tibiofemoral joint OA.

   (c)Chronic ACL tear.

   (d)Small joint effusion, leaking Baker’s cyst and a couple of intra-articular loose bodies.

   (e)Partial thickness tears and sprain of the popliteus tendon insertion.

   [4] MAI Documents page 37

6. Dr Davis referred the applicant to Dr Peter Cole, sports medicine physician for review. Dr Cole saw the applicant on 14 January 2021. His notes record,[5] that though he had not had access to the MRI scan report at the time of his examination of the applicant, his view was that the applicant had “likely chronic knee changes ie… ? acute meniscal tear that may be causing mechanical symptoms”.[6]

   [5] MAI Documents pages 39-40

   [6] MAI Documents page 40; Consultation notes of Dr Peter Cole dated 13 January 2021 page 3

7. The respondent arranged for the applicant to be assessed by an occupational therapist from Benchmark Rehabilitation in order to assess his needs and activities of daily living. The initial assessment was carried out on 20 November 2020 and the report prepared following that assessment records the injuries and symptoms reported by the applicant in some detail.[7] No mention of right knee injury is made, however, the applicant described reduced strength to his right lower limb and reduced range of motion to the right knee. It is noted on page 6 of the report that the applicant could walk up to 20 minutes but slowly with up to three rest breaks within the 20 minutes.

   [7] MAI Documents pages 45-69

8. Following the motor accident, the applicant’s GP referred him for physiotherapy treatment to Entire Physio. In a letter to Dr Davis dated 9 December 2020 Mr Rutten,[8] a physiotherapist at Entire Physio, reported that the applicant had pain in his right lower back and into his right gluteals and leg and that he reported on that day “feeling like his right knee was going to give way at times”. It was also reported that the applicant was trying to walk 20 to 45 minutes regularly.

   [8] MAI Documents page 96

9. Dr Davis forwarded a letter to the respondent on 9 February 2021,[9] in which he said that the MRI report of the applicant’s right knee was consistent with multiple injuries to his right knee, from the injury in September 2020. Dr Davis also said that there was no past history of any knee symptoms. Dr Davis said that the applicant will need a referral to an orthopaedic surgeon for review and possible surgical treatment.

   [9] MAI Documents page 35

10. In a later letter dated 5 March 2021[10] Dr Davis said that the applicant’s right knee felt unstable after he was trying to walk. It was not obvious initially because his other injuries caused him not to be able to move freely, he walked with legs stiff, shuffling very slowly. After three months he was able to have a little flexion in his hips and knees so then noted instability in his knee. Dr Davis repeated that the applicant had no past history of any knee injury.

    [10] MAI Documents page 41

11. The clinical notes from Rutledge Family Medical Centre record that the applicant attended the practice on 3 September 2019 and reported pain in the right knee after missing a step and jarring his knee. He was referred for an x-ray of his right knee.[11] The notes record that the applicant attended the practice on 17 October 2019 and 24 October 2019 but no mention of the right knee is recorded. On 5 December 2019 Dr Davis recorded that the applicant had the x-ray of his right knee on 3 November 2019 and that osteo arthritic changes were noted.[12]

    [11] MAI Documents page 233

    [12] MAI Documents page 236

12. In a letter dated 5 May 2021 addressed to the respondent, that is after the reviewable decision was made, Dr Davis said that the applicant had pre-existing arthritis but no pain and disability in the right knee. He expressed the view that the changes shown on the MRI of the right knee were due to the motor accident and that they were not reported as acute or very recent injury because of the time which had elapsed between the accident and the scan. Dr Davis’ letter was given to the Tribunal by the applicant. No application has been made pursuant to section 197(3) of the MAI Act to present the letter as evidence given that it was not available to the decision-maker at the time the reviewable decision was made. Accordingly, I have not taken the opinion expressed by Dr Davis in this letter into account in reaching a decision. In any event, the opinion expressed in this letter adds little new information to opinions expressed by Dr Davis in earlier correspondence with the respondent.

13. The respondent referred the applicant to Dr Simon Journeaux, an orthopaedic surgeon, for examination. Dr Journeaux prepared a report addressed to the respondent dated 26 May 2021. Dr Journeaux reported that from what the applicant told him and review of the medical records he was provided with, he had ascertained that the applicant first suffered onset of symptoms relating to the right knee in November 2020.

14. Dr Journeaux expressed the opinion that the applicant suffers from long standing degenerative change in his right knee, most likely as a consequence of an internal derangement suffered earlier in his life, and that there is no evidence that he injured his knee in the motor accident. In his view the right knee symptoms are wholly due to constitutional pathology.

Relevant statutory framework

1. Section 66 of the MAI Act sets out the obligations of an insurer to pay defined benefits to an applicant:

   66     Accepting liability—payment of defined benefits

   (1)If a relevant insurer accepts liability for defined benefits, the insurer must pay the applicant the defined benefits to which the applicant is entitled.

   NoteIf relevant insurer receives an application for death benefits, the insurer must apply to the ACAT for an order for the payment of the death benefits to the dependants (see s 176).

   (2)The MAI guidelines may make provision in relation to the payment of defined benefits.

2. Section 112(1)(a) of the MAI Act provides that a person injured in a motor accident is entitled to payment of treatment and care expenses amongst other defined benefits.

3. Section 113 of the MAI Act defines treatment and care expenses:

   113   Meaning of treatment and care expenses—ch 2

   In this chapter:

   treatment and care expenses, for a person injured in a motor accident—

   (a)     means expenses incurred by the injured person in providing for the injured person’s treatment and care; but

   (b)     does not include expenses incurred for treatment and care—

   (i)that was not reasonable and necessary; or

   NoteSection 120 deals with deciding whether treatment and care is reasonable and necessary.

   (ii)that did not relate to a personal injury sustained in the motor accident; or

   (iii)for which the injured person has not paid and is not liable to pay.

   Example—subpar (iii)

   nursing care or domestic services provided by a domestic partner or parent on a gratuitous basis

4. Section 120 of the MAI Act sets out the factors to be considered by the insurer in deciding whether treatment and care is reasonable and necessary:

   120   Deciding whether treatment and care is reasonable and necessary

   In deciding whether treatment and care for an injured person is reasonable and necessary, the relevant insurer for the motor accident must consider the following:

   (a)whether the treatment and care is reasonable and necessary in the circumstances;

   (b)whether the treatment and care—

   (i)is directly related to the person’s injury; and

   (ii)is appropriate for the injury; and

   (iii)will benefit the person;

   (c)the appropriateness of a provider of the treatment and care;

   (d)whether the treatment and care is cost effective;

   (e)the MAI guidelines.

5. The Motor Accident Injuries (Treatment and Care) Guidelines 2019 (MAI Guidelines), made under section 487 of the MAI Act, provide guidance about approving and making payments for treatment and care benefits. Guideline 6.4.1 provides some guidance to the insurer when considering whether treatment and care is directly related to a person’s injury:

   6.4 Treatment and Care that is considered reasonable and necessary

   In deciding whether treatment and care is reasonable and necessary an insurer must consider the factors set out in section 120 of the MAI Act.

   6.4.1 Directly related to a person’s injuries

   Treatment and Care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury. An insurer may consider the time elapsed since the motor accident, and any subsequent injuries or comorbidities, in determining whether treatment and care is directly related to a person’s injury.

Is treatment for the right knee payable by the respondent?

1. The dispute relating to the applicant’s entitlement for the cost of the treatment of his right knee, that is referral to an orthopaedic surgeon and the cost of a portable bicycle, arises out of the parties’ disagreement on the causation of the injury. Both parties have made submissions addressing the right knee injury aspects of the reviewable decision. The applicant submits that the right knee injury is the result of the motor accident because the applicant had not complained of knee pain which affected his activities of daily living prior to the motor accident. He further submits that Dr Davis’ opinion on causation, which is summarised above under the heading ‘The medical evidence’, should be preferred over the opinion of Dr Journeaux. The respondent, on the other hand, submits that the applicant’s right knee injury cannot be attributed to the motor accident based on the treating records and Dr Journeaux’s opinion which should be preferred.

2. I accept that there is no persuasive evidence that the applicant suffered from a symptomatic right knee condition prior to the motor accident. The entries in Dr Davis’ clinical notes on 3 September and 3 November 2019 in relation to the right knee do not support a significant or symptomatic ongoing injury. Further, Dr Davis, who has been treating the applicant for a number of years, is clearly of the view that he had no injury to his right knee pre-accident. In my view, the fact that Dr Davis did not make mention of the jarring of the right knee the applicant reported in September 2019 is likely to be due to the fact that that injury was not significant enough to be recalled by the doctor. There were no recorded symptoms arising out of that event other than some pain reported once only on 3 September 2019. Further, Dr Journeaux did not attribute the applicant’s right knee symptoms to the jarring injury of September 2019.

3. However, the absence of a symptomatic knee condition prior to the motor accident is not sufficient evidence by itself to attribute the need for treatment of the right knee to an injury caused by the motor accident. The mere fact that the applicant suffered symptoms related to his right knee some time after the motor accident, does not establish a causal connection with an injury arising from the motor accident.

4. There is no evidence that the impact of the motor accident affected the applicant’s right knee. He has not reported any impact or movement caused by the collision of the vehicles which could have injured his knee. Immediately after the accident he could walk and drive. He complained of lower back pain and chest pain when he attended the ED on the day of the accident and said that he moved backwards and forwards twice as a result of the impact of the accident without hitting his head on any part of the car.

1. The available evidence supports that the applicant first reported symptoms of the right knee on 20 November 2020 when interviewed by the occupational therapist from Benchmark Rehabilitation. He also reported to Dr Journeaux that he first experienced right knee symptoms in November 2020. That was more than two months after the motor accident.

2. Dr Davis attributes the lack of symptoms related to the right knee prior to 20 November 2020 to the fact that the applicant had difficulty walking after the motor accident due to the injuries he suffered in the accident. Dr Davis is of the view that the symptoms only became apparent once the applicant became more ambulant. However, the Queanbeyan District Hospital discharge letter dated 14 September 2020 refers to the applicant taking a walk in his garden, and the Benchmark Rehabilitation initial assessment records that the applicant walked regularly during the period between the accident and 20 November 2020. I accept that the applicant may have walked slowly and with difficulty, but I am not persuaded that he was so immobilised that he would not have been aware of any symptoms in his knee caused by an injury he suffered in the motor accident for the entirety of that period.

3. Guideline 6.4.1 of the MAI Guidelines provide that an insurer may consider the elapse of time since the motor accident and any subsequent injuries or comorbidities in determining whether treatment and care is directly related to a person’s injury.

4. In this case there is a significant time gap between the date of the motor accident and the reporting of symptoms in the right knee requiring treatment. Further, the MRI report of the right knee dated 7 January 2021 reveals a number of chronic disorders which were most likely comorbidities existing prior to the motor accident including severe osteoarthritis. Dr Journeaux has expressed the opinion that the applicant suffers from long standing degenerative changes in his right knee which predate the motor accident. I accept this opinion.

5. It is possible that the applicant’s pre-existing knee condition, which appears to have been largely asymptomatic prior to the motor accident, was exacerbated either directly or indirectly by an injury caused by the motor accident. As noted in MAI Guideline 6.4.1, an exacerbation caused by the motor accident of a pre-existing injury can attract treatment and care benefits. However, in this case the only available evidence supporting a right knee injury caused by the motor accident is that of Dr Davis, which is to the effect that the injury to the right knee as shown on the MRI was directly caused by the accident. I do not accept that the applicant suffered the conditions described in the MRI of his knee in the accident because there is no evidence at all supporting that an injury to the right knee occurred during the impact caused by the accident.

6. There is also no evidence supporting the proposition that the right knee condition for which the applicant now requires treatment, was caused by exacerbation of his pre-existing condition by any of the other injuries he suffered as result of the motor accident, or the symptoms caused by those injuries. Accordingly, I consider that the respondent’s decision to deny liability for the cost of a review of his right knee by an orthopaedic surgeon and for the cost of a portable exercise bike for treatment of the right knee, should be affirmed.

Liability for the cost of an MRI scan of the cervical spine to assess the efficacy of possible facet joint injections to the cervical spine

1. The reviewable decision also denied liability for the cost of an MRI scan of the cervical spine. The MRI scan was requested on behalf of the applicant by Dr Davis after the referral of the applicant to Dr Peter Cole who, in January 2021, recommended this treatment. Subject to the result of the MRI Dr Davis also recommended CT-guided steroid injections into the facet joints and possibly nerve root foramina.[13] The reviewable decision also denied liability for the cost of any CT guided steroid injections.

   [13] MAI Guidelines page 35

2. The Application for Review challenges the decision to deny liability for the cervical spine MRI and seeks an order approving the cost for that MRI. The applicant has not made any submissions in support of his challenge of this part of the reviewable decision.  Nor has the respondent made any submissions in support of this aspect of the reviewable decision other than to refer the Tribunal to the reasons set out in the reviewable decision.

3. It is not in dispute that the applicant suffered an injury to his cervical spine as a result of the motor accident. What is in dispute is whether the requested treatment is reasonable and necessary in the circumstances pursuant to section 120 of the MAI Act.

4. Based on the reasons set out in the reviewable decision, the respondent denied liability for the MRI scan and the possible need for the facet joint injections because it was considered by the respondent that the applicant had full range of movement in his cervical spine with no neurological signs to indicate nerve impingement. The decision-maker considered that there was no clinically alerting features to indicate the need for the MRI. In relation to the facet joint injections, the decision-maker relied on a study, titled “Systematic Review of Diagnostic Utility and Therapeutic Effectiveness of Cervical Facet Joint Interventions”. It is not clear where, or when, the study was published, although reference is made to ‘Pain Physician 2009’, which might be a reference to one of the 2009 issues of an American medical journal. The study was relied upon in support of the proposition that facet joint injections are not helpful in the treatment of chronic facet joint pain. A copy of the study was not provided to the Tribunal as a document available to the decision-maker when the decision was made, as impliedly required by section 197(2) of the MAI Act. The summary of the study as set out in the reviewable decision is not, in my view, at all helpful in considering whether the treatment recommended by the applicant’s treating doctors is reasonable and necessary.

Medical evidence relevant to cervical spine MRI/facet joint injections

1. Dr Journeaux, who provided his report after the reviewable decision was made, does not comment on the recommendation for the MRI of the cervical spine and the possibility of the cervical spine facet joint injections. However, he concludes that the applicant is unlikely to benefit from further specific physical treatment under Allied Health practitioners. He has, instead, expressed the opinion that the applicant is most likely to benefit from review by a psychologist or psychiatrist to determine whether he suffers from a psychological or psychiatric condition amenable to treatment. Dr Journeaux opined that the applicant suffers from an adjustment disorder with associated depression and/or anxiety as a consequence of the motor accident, though he acknowledged that commenting further on a psychiatric/psychological condition is outside his area of expertise.

2. Dr Journeaux considered that the applicant continued to suffer from ongoing symptoms in his cervical spine caused by the motor accident injury, including limitation of movement. Utilising AMA 5 methodology, he assessed the applicant as having an 8% whole person impairment due to the cervical spine injury he suffered in the motor accident.

3. Dr Journeaux’s conclusion that the applicant’s injuries have not improved at all despite the physiotherapy treatment he has had, is contrary to the applicant’s report to Dr Journeaux that his symptoms had improved around 70% to 80% of what they were at their worst, but they had plateaued over the last three months. Dr Journeaux’s conclusion is also contrary to the progress reports of Benchmark Rehabilitation dated 17 December 2020,[14] 28 January 2021,[15] 12 March 2021,[16] and 15 April 2021,[17] all of which record improvement in the applicant’s functional ability to perform pre-injury activities.

   [14] MAI Documents page 70

   [15] MAI Documents page 75

   [16] MAI Documents page 81

   [17] MAI Documents page 87

4. In his letter to the respondent dated 5 March 2021, Dr Davis says that the applicant has facet joint dysfunction even though he may not have neurological deficits. Dr Davis states that steroid injections to the facet joints would likely give significant analgesia and allow rapid recovery of function. In his earlier letter of 9 February 2021,[18] Dr Davis makes reference to the review of the applicant by Dr Peter Cole and states that the referral for the MRI and assessment of whether facet joint injections should be administered, is consistent with Dr Cole’s recommendation. Dr Cole’s recommendation also confirm this.[19]

Is the cervical spine MRI and the facet joint injections reasonable and necessary treatment?

[18] MAI Documents page 35

[19] MAI Documents page 39

1. Section 120 of the MAI Act sets out the factors which the insurer should consider in deciding whether treatment and care for an injured person is reasonable and necessary. Relevantly to this dispute, these include:

   (a)whether the treatment is appropriate for the injury and will benefit the person; and

   (b)the MAI Guidelines.

2. MAI Guidelines 6.4.2 and 6.4.3 provide guidance in assessing whether a recommended treatment is reasonable and necessary. Those guidelines state:

   6.4.2Benefit to the participant

   Treatment and care will benefit a person if:

   ·it will assist the injured person’s recovery or management of the person’s injury;

   ·it has specific goals, an expected duration and expected outcomes and these are understood and agreed by the injured person;

   ·it will not cause adverse outcomes or harm to the person;

   ·there are medical reports or assessments that show the treatment or care will benefit the person;

   ·the treatment or care has been provided in the past to the person with positive results or outcomes.

   6.4.3Appropriate for an injury

   Treatment and care will be appropriate for an injury if:

   ·it is based on current clinical practice, evidence-based practice or clinical guidelines;

   ·there is good evidence for the efficacy of the treatment over other treatments;

   ·it will not contradict any treatment and care in the person’s recovery plan.

3. In this case, according to the applicant’s treating doctors the proposed MRI will assist the applicant’s management of his cervical spine injury. The only medical assessments commenting on the MRI are those of Dr Davis and Dr Cole both of whom recommend the MRI.

4. The reviewable decision refers to a study, most likely published in 2009 which seems to suggest that facet joint injections in the cervical spine are not based on evidence-based practice and that there is no good evidence for the efficacy of that treatment. As I have noted above, the information from that study quoted in the reviewable decision is not recent, clear or sufficiently authoritative to enable the Tribunal to rely upon it to reject the recommendation made by the applicant’s treating doctors. In any event, no decision can be made in relation to the facet joint injections before the MRI report is available.

5. I consider that the referral for the MRI is appropriate for the applicant’s cervical spine injury because the treatment he has had to date has only had limited effect and his condition has plateaued. All of the medical professionals who examined the applicant agree that he continues to experience symptoms associated with the injury caused by the motor accident. Dr Journeaux is of the view that further physiotherapy or other physical therapy is unlikely to assist the applicant because he has not improved at all to date with that treatment. Dr Journeaux is of the view that the applicant has most likely developed a psychological condition and he no longer requires physical therapy. I note that Dr Davis has agreed to refer the applicant to a psychologist, but also recommends further investigation of the physical condition by way of an MRI and subject to that, treatment with facet joint injections.

6. I prefer the recommendation of Dr Davis to that of Dr Journeaux’s on this issue. Dr Davis has treated the applicant for many years. I consider he is therefore in a better position to assess what kind of treatment the applicant might benefit from. His recommendation for further investigation of the cervical spine injury by way of an MRI scan and possible injections following the MRI, is supported by Dr Cole. Further, Dr Journeaux’s impression that the applicant has gained no benefit at all from physical treatment, and should therefore only be assessed for psychological treatment, is contrary to the evidence in the Benchmark Rehabilitation reports, the opinion of the applicant himself and the opinion of Dr Davis. Dr Davis has stated in his correspondence with the respondent that the applicant gained, albeit slowly, some mobility by December 2020 after having physiotherapy. I therefore consider that further investigation by way of an MRI of the applicant’s cervical spine injury is reasonable and necessary in the circumstances.

7. Subject to the results of the MRI and the opinion provided by his treating doctors, facet joint injections may benefit the applicant. There is insufficient information to decide whether facet joint injections is reasonable and necessary treatment at this time. I am of the view that the respondent should reconsider whether it is reasonable and necessary to approve the cost of facet joint injections after the MRI result is available and Dr Davis and/or Dr Cole express an opinion about the potential efficacy of that treatment.

8. The Tribunal orders that:

9. Pursuant to section 197 of the Motor Accident Injuries Act 2019, the respondent’s internal review decision dated 15 April 2021 to deny liability for:

   (a)Referral for MRI scan of the cervical spine;

   (b)Facet joint injections to the cervical spine;

   (c)Orthopaedic specialist review of the right knee;

   (d)The purchase of a portable exercise bike for treatment of the right knee;

   is amended as follows:

   (a)The decision denying liability for the cost of referral for an MRI scan of the cervical spine is set aside.

   (b)The decision denying liability for facet joint injections in the cervical spine is remitted to the insurer for reconsideration once the result of the MRI scan of the cervical spine and any medical opinion in relation to that result is available.

10. The decision denying liability for orthopaedic specialist review of the right knee and the purchase of a portable exercise bike is affirmed.

11. Pursuant to section 112(1)(a) of the MAI Act the respondent is to pay the cost of an MRI scan of the applicant’s cervical spine.

12. Pursuant to regulation 6(2) of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020, in relation to the applicant’s application for costs set out in the applicant’s submissions dated 2 September 2021, the applicant is given liberty to provide to the Tribunal and the respondent, within 10 days of the date of this order, an itemised statement with details of the costs incurred by the applicant.

13. The respondent is given liberty to give to the Tribunal and the applicant, within 5 days of receiving the applicant’s itemised statement of costs, submissions, if any, it wishes to make in relation to the costs order sought by the applicant.

14. Upon receipt of the above documents the Tribunal will make an order in relation to the applicant’s application for costs.

    ………………………………..

Acting Presidential Member T Kyprianou

Date(s) of hearing	On the papers
Solicitors for the Applicant:	Baker Dean and Nutt
Solicitors for the Respondent:	Sparke Helmore Lawyers