Sarwary v Allianz Australia Insurance Limited
[2023] NSWPICMP 125
•31 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Sarwary v Allianz Australia Insurance Limited [2023] NSWPICMP 125 |
| CLAIMANT: | Maria Sarwary |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Lesley Barnsley |
| DATE OF DECISION: | 31 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (2017 Act); the claimant suffered injury on 2 March 2021; the dispute related to the payment of the costs of a transcutaneous electrical nerve stimulation (TENs) machine valued at between $100 and $400; claimant not re-examined; reference to section 42(4) of the Personal Commission Act 2020; proportionality between the cost to the parties and the Personal Injury Commission and the importance and complexity of the matter; examination otherwise of no utility; discussion of benefits of a TENs machine; use as an aid to reduced perception of pain; no downside in the treatment; low cost; recognised and appropriate treatment; treatment tailored to the claimant’s circumstances; application of insurer’s obligations under clause 4.76 of the Motor Accidents Guidelines (version 9.1, effective 1 April 2023) to the meaning of “reasonable and necessary in the circumstances” in section 3.24 of the 2017 Act queried; Held – orders made for payment of expenses of TENS machine; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel revokes the certificate dated 31 August 2022 and issues a new certificate determining that: · a TENS machine request by Dr Alan Nazha on 23 September 2021 IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · a TENS machine request by Dr Alan Nazha on 23 September 2021 RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. Medical Assessment – Recovery Review Panel Assessment of Recovery Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 31 August 2022 and issues a new certificate that the following treatment and care: · the TENS machine request by Dr Alan Nazha on 23 September 2021 WILL IMPROVE THE RECOVERY OF THE CLAIMANT. |
REASONS
BACKGROUND
Ms Maria Sarwary (the claimant) suffered injury in a motor accident on 2 March 2021 (the motor accident) when her vehicle was hit by an overtaking vehicle and pushed into the oncoming lane of traffic. There was no secondary impact with the oncoming traffic.[1]
[1] Claimant’s bundle, p 85.
The claimant alleges that the motor accident caused injuries to her shoulders, low back and neck.
The treatment dispute is whether the provision of a TENS machine is reasonable and necessary in the circumstances and whether the need is caused by the motor accident.
The cost of the provision of a TENS machine including education, fitting and consulting fee in September 2021 was $400.[2] A receipt suggested that the machine purchased by the claimant was less than $100.
[2] Claimant’s bundle, p 432.
The dispute is now before a Review Panel having been determined as first instance by a Medical Assessor. The legislation provides without any reference to the amount of the treatment, that the medical dispute be determined on Review by two Medical Assessors and a Member of the Personal Injury Commission (Commission).
The insurer is liable to pay to Ms Sarwary any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute is whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
Pursuant to Schedule 2, cl 2 of the MAI Act, these disputes are declared to be a medical assessment matter.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor Wijetunga who issued a Medical Assessment Certificate dated 31 August 2022 (the medical assessment). Medical Assessor Wijetunga concluded that the aggravation of any back condition was of limited duration, the shoulder symptoms were not caused by the motor accident and the TENS machine is generally not evidenced based for whiplash.
The Medical Assessor concluded that the provision of a TENS machine is not reasonable and necessary, not causatively related to the motor accident and would not improve recovery.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Ms Sarwary within 28 days after the parties were issued with the medical assessment.The President’s delegate referred the medical assessment 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.[4]
[4] Section 7.26(5) of the MAI Act; claimant’s bundle, p 4.
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 review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed separate bundles totalling in the order of 900 pages, which in keeping with the practice of the legal profession with respect to the lodgement of documents for Medical Reviews, included multiple copies of many documents.
The Panel inquired and was advised by the claimant’s solicitor that the error that purportedly infected the Medical Assessment was not repeated for the Panel. That is, there was no material within the bundles that did not relate to the claimant.
STATUTORY PROVISIONS
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 9.1 of the Guidelines applies to determinations occurring on or after 1 April 2023. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]
SUBMISSIONS
Claimant’s submissions undated[11]
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] Claimant’s bundle, p 21.
The claimant noted that on 23 September 2021 Dr Nazha sought approval from the insurer for the provision of a TENS machine to decrease the claimant’s reliance on pharmacotherapy.
The claimant referred to the objects set out in s 1 of the MAI Act which encourage the early and appropriate treatment of injured persons. The MAI Act should be construed beneficially in favour of an injured person
The claimant referred to “ample qualified medical evidence” including:
(a) application for personal injury benefits;
(b) Allied health recovery requests;
(c) report of Dr Pope dated 7 July 2021;
(d) psychiatric evidence;
(e) CT guided injections into L3/4 facet joints;
(f) report of Dr Nazha dated 15 October 2021, and
(g) consistent clinical notes of Dr Luu commencing on 4 March 2021 and ongoing referring to persistent neck, shoulder and back pain.
The claimant submitted that the injuries were serious, and the treatment arose from the accident.
The claimant suggested that the injury was “suggestive of radiculopathy” although it was unreasonably premature to make such a diagnosis in the absence of a diagnosis from a specialist.
The claimant referred to various scans including MRIs scans of the lumbar and cervical spine in July 2021 and SPECT/CT of the lumbar spine/pelvis dated 21 July 2021.
The need for the TENS machine was due to ongoing neck and back pain. The opinions of
Dr Nazha and Dr Pope, treating specialists, should be given weight.
Claimant’s submissions dated 8 September 2022[12]
[12] Claimant’s bundle, p 10.
These submissions were filed seeking a review of the Medical Certificate.
It was noted that the claimant had included material in its application that was unrelated to her and was then considered by the Medical Assessor. The Medical Assessor committed error in relying on the material in forming the view that the need for the TENS machine related to the pre-existing condition.
Insurer’s submissions dated 27 October 2021[13]
[13] Claimant’s bundle, p 490.
The insurer provided an internal review dated 27 October 2021 declining the cost of a TENS machine.
The insurer referred to cl 4.77 and 4.67 of the Motor Accident Guidelines which outline the principles which an insurer must consider in determining treatment requests which has regard to five guiding principles for the clinical framework for the delivery of health services and the whiplash guidelines for the management of acute whiplash associated disorders.
The review noted that the claimant had sustained a soft tissue whiplash injury to the cervical and lumbar spine without any neurological signs or symptoms consistent with a Type II diagnosis.
The insurer referred to a TENS machine which was:[14]
“[A] non-invasive low frequency electrical stimulation that is applied through the skin with the aim of introducing an afferent barrage to decrease the perception of pain.”
[14] Claimant’s bundle, p 494.
The insurer stated:
“I refer to the Guidelines for the management of acute whiplash associated disorders for health professional (2014) whereby TENS is included as treatment where there is no evidence for or against it use. This, I am satisfied the criteria under the clinical framework principle “Base treatment on best available research evidence” has not been met.”
The insurer did not accept that the treatment was “reasonable and necessary” and maintained its declinature for liability to pay for a TENS machine.
Insurer’s submissions dated 7 January 2022[15]
[15] Insurer’s bundle, p 5.
The insurer submitted that the treatment was not reasonable and necessary because of the minor nature of the accident-related injuries and a TENS machine is “not treatment based on the best available research”.
The insurer referred to cls 4.76 and 4.77 of the Motor Accident Guidelines which endorsed the clinical framework for the delivery of health services which required:
(a) the effectiveness of the treatment;
(b) a biophysical approach which considered the person and their individual circumstances;
(c) empowering the injured person to manage their recovery;
(d) implement goals focused on optimising function, participation and return to work or other activities, and
(e) base treatment on the best available research.
The insurer referred to the “Whiplash Guidelines for the management of acute whiplash associated disorders for health professionals” and note that under the third edition (2014 version) the TENS machine is considered a treatment where there is “no evidence for or against its use”.[16]
[16] Insurer’s bundle, p 8.
The insurer submitted that the motor accident was minor based on:
(a) the absence of attending ambulance personnel;
(b) the claimant did not attend hospital, and
(c) minor damage as shown in the photographs.
The insurer referred to pre-accident pathology and symptoms to the low back, carpal tunnel, left shoulder, obesity and depression.
The insurer referred to the minor nature of the claimant’s physical injuries as evidenced by:
(a) certificates of capacity diagnosing soft tissue injuries, and
(b) post-accident scans demonstrating only degenerative changes.
The insurer accepted:[17]
“[T]he claimant sustained soft tissue injury to her cervical and lumbar spine as a result of the subject accident.”
[17] Insurer’s bundle, p 8.
The insurer then submitted that the treatment was not reasonable and necessary “for the claimant’s soft tissue injury” given the minor nature of the accident-related injuries and the extensive pre-accident medical history and symptomatic lumbar spine condition. It further submitted that the TENS machine is not treatment “based on the best available research evidence as required by the Guidelines”.
Insurer’s submissions dated 24 October 2022[18]
[18] Claimant’s bundle, p 109.
These submissions were filed opposing the review. The insurer noted that the reference to the incorrect documents (6 pages) made no difference to the medical assessment.
The insurer referred to the extensive pre-accident medical history of low back pain and the Medical Assessor’s conclusion that the current low back pain was probably related to the pre-existing history.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
An MRI scan of the lumbar spine dated 25 September 2019 referred to a history of back pain and right sciatica. The scan showed mild disc changes with facet joint degeneration at L3/4.[19]
[19] Claimant’s bundle, p 281.
A left shoulder ultrasound dated 30 October 2019 showed mild supraspinatus tendinosis and clinical capsulitis.[20]
[20] Claimant’s bundle, p 284.
Progress physiotherapy notes dated 12 November 2019 refer to a 12-year history of bilateral carpal tunnel syndrome.[21] Further notes dated 27 March 2020 refer to a one-year history of left frozen shoulder and development of left elbow pain.[22]
[21] Claimant’s bundle, p 285.
[22] Claimant’s bundle, p 294.
Outpatient physiotherapy assessment in July 2020 noted back pain since 1999 and ongoing left shoulder and bilateral wrist problems.[23]
[23] Claimant’s bundle, p 306.
Post-accident medical evidence
On 4 March 2021 the claimant attended her general practitioner (GP) who noted reduced range of motion in the cervical spine with bilateral tenderness.[24]
[24] Claimant’s bundle, p 449.
On 29 April 2021 the GP noted neck pain and stiffness with no paraesthesia and associated headaches since the motor accident.[25]
[25] Claimant’s bundle, p 385.
On 13 May 2021, 19 May 2021 and 27 May 2021 the GP noted persistent neck pain and stiffness[26] with depressed moods and recurrent nightmares.
[26] Claimant’s bundle, pp 386 – 388.
On 30 May 2021 the GP noted ongoing neck pain and associated left shoulder pain and back stiffness.[27] A certificate dated 30 May 2021 referred to soft tissue injuries to the neck, back shoulders and post-traumatic stress disorder.[28]
[27] Claimant’s bundle, p 389.
[28] Claimant’s bundle, p 394.
The clinical note of the GP dated 23 June 2021 noted persistent low back pain radiating down the legs and associated neck pain.[29] Subsequent notes repeat complaints of neck and low back pain.[30] On 7 July 2021 the GP described the pain as radiating to the shoulders.
[29] Claimant’s bundle, p 318.
[30] Claimant’s bundle, pp 318-333.
The certificate completed by Dr Vuong dated 19 May 2021 referred to treatment for psychologist, physiotherapy and pain medication.[31]
[31] Claimant’s bundle, p 56.
Allied health recovery request dated 23 June 2021 noted ongoing bilateral shoulder impingement, low back and neck pain and recommended a further 10 physiotherapy sessions.[32]
[32] Claimant’s bundle, p 52.
Allied health recovery request dated 16 August 2021 noted ongoing bilateral shoulder impingement, low back and neck pain and recommended a further 10 physiotherapy sessions.[33]
[33] Claimant’s bundle, p 46.
Allied health recovery request dated 11 October 2021 noted ongoing bilateral shoulder impingement, low back and neck pain and recommended a further eight physiotherapy sessions.[34]
[34] Claimant’s bundle, p 43.
Dr Pope, neurosurgeon initially saw the claimant on 7 July 2021[35] noting a history of insidious onset of neck and interscapular pain with bilateral shoulder pain down the arms. The doctor diagnosed probable whiplash associated disorder type II in the cervical spine with lumbar musculoskeletal pain with potential joint arthropathy or sacroiliitis with a significant psychologic component.
[35] Claimant’s bundle, p 350.
Dr Pope provided a further report dated 28 July 2021.[36]The doctor noted that the motor accident had caused “significant distress physically mentally” but there were no abnormalities requiring surgery. Cortisone injections were recommended at L3/4 as the back pain was worse than the neck pain. The diagnostic injections were undertaken in October and November 2021.[37]
[36] Claimant’s bundle, p 113.
[37] Claimant’s bundle, p 412.
In a further report following a consultation in December 2021, Dr Nazha described it as “unfortunate” that the insurer declined the request for a TENS machine “considering the adverse effects Maria has experienced with prescribed pharmacotherapy”.[38]
[38] Claimant’s bundle, p 364.
Dr Nazha repeated this opinion in a subsequent report.[39]
[39] Claimant’s bundle, p 366.
In a report dated 10 January 2022 responding to the insurer’s questions, Dr Nazha noted that he first consulted Ms Sarwary six months after the motor accident and could not comment on the pre-existing injuries.[40] He opined that the motor accident would result in significant exacerbation of degenerative changes and caused the need for various treatments including pain management therapies.
[40] Claimant’s bundle, p 411.
In May 2022 Dr Nazha recommended a psychoeducational pain management programme.[41]
[41] Claimant’s bundle, p 371.
In March 2022 the GP noted bilateral knee pain with a past history of a left meniscal tear.[42] Subsequent notes also refer to bilateral knee pain.[43]
[42] Claimant’s bundle, p 334.
[43] Claimant’s bundle, pp 334- 339.
In May 2022, Dr Rahme, orthopaedic surgeon, noted that it was three years since his previous review of knee injuries.[44] The claimant presented with considerable varus deformities with symptoms progressing over the interval.
[44] Claimant’s bundle, p 373.
Clinical note dated 28 September 2022 noted the recent loss of weight following sleave gastrectomy and ongoing low back and neck pain radiating to the shoulders.[45]
[45] Claimant’s bundle, p 343.
In June 2022 Dr Pope noted ongoing pain which had not changed since the previous consultation.[46] The doctor opined there was no surgical lesions and did not make arrangements for further review.
[46] Claimant’s bundle, p 375.
Radiology
The MRI scan of the lumbar spine dated 17 June 2021[47] showed severe facet joint arthropathy at L3/4, dehydration and facet joint arthropathy at L4/5 and bilateral facet joint arthropathy at L5/S1.
[47] Claimant’s bundle, p 38.
The MRI scan of the cervical spine dated 16 July 2021 showed no fracture, minimal bulges at the lower cervical discs and mild facet joint arthroplasty at C5/6.[48]
[48] Claimant’s bundle, p 36.
The SPECT/CT scan showed moderate degeneration at L5/S1 with facet joint disease at L3/4.[49]
[49] Claimant’s bundle, p 35.
A bone scan dated 21 July 2021 showed moderate degenerative changes in the lower lumbar spine with no evidence of fracture or mechanical dysfunction.[50]
[50] Claimant’s bundle, p 518.
A CT guided bilateral facet joint injections were undertaken on 10 August 2021.[51]
[51] Claimant’s bundle, p 34.
Claim form
Ms Sarwary completed a claim form dated 28 May 2021 which asserted injuries to the neck, shoulders, back, depression and numbness down arms.[52] The low back, carpal tunnel, left shoulder, obesity and depression were described as pre-existing illnesses.
[52] Claimant’s bundle, p 30.
The police report confirmed the claimant’s version of the nature of the motor accident.[53] The police officer confirmed the accident and noted that Ms Sarwary declined to be checked by paramedics.
[53] Claimant’s bundle, p 131.
The police officer described the damage to the rear of the vehicle as “minor”, the vehicle was driveable, and no airbags were deployed.[54] Photographs of the claimant’s vehicle show damage to the rear.[55]
[54] Claimant’s bundle, p 142.
[55] Claimant’s bundle, pp 168-171.
Other medical evidence
Various medical reports describe Ms Sarwary’s ongoing psychological condition for a major depressive disorder and post-traumatic stress disorder. The Panel notes but does not intend to summarise the significant medical evidence evidencing the psychological problems.
Qualified evidence
Dr James Bodel, orthopaedic surgeon, provided a report dated 27 June 2022.[56]
[56] Claimant’s bundle, p 84.
Dr Bodel diagnosed musculoligamentous injuries to the neck, shoulders and back and a direct blow to the knees. The diagnosis of the shoulders was an aggravation of rotator cuff pathology.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
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[57] and Insurance Australia Ltd v Marsh.[58]
[57] [2021] NSWCA 287 at [40], [41] and [45].
[58] [2022] NSWCA 31 at [11], [21] and [64].
We are conscious that we are required to undertake a new assessment and of the observations of the Court of Appeal in Sydney Trains v Batshon.[59]
[59] [2021] NSWCA 143 (Batshon) at [41] per Leeming JA, White and McCallum JJA agreeing.
However, we note the amount of the claim is limited to a value of $400. The findings of the Review Panel are not determinative of causation in any other dispute between these parties: Owen v Motor Accidents Authority[60]; Allianz Australia Insurance Ltd v Girgis[61]; Brown v Lewis[62] and Pham v Shui.[63]
[60] [2012] NSWSC 650.
[61] [2011] NSWSC 1424
[62] [2006] NSWCA 587.
[63] [2006] NSWCA 373.
The guiding principle of the Commission is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings (s 42(1) of the PIC Act). In particular, s 42(4) of the PIC Act emphasises proportionality between the cost to the parties and the Commission and the importance and complexity of the subject-matter. The sub-section provides:
“In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.”
Accordingly, the importance of the matter is limited to the present dispute.
The Panel otherwise saw no utility in conducting a medical examination where the TENS machine was recommended and acquired by the claimant some two years previously.
For these reasons the Panel has determined to conduct its new assessment without recourse to a further examination.
Injury
The insurer conceded injury to the cervical and lumbar spine although submitted that any injury was minor.
We accept the insurer’s submission that there was a chronic history of back pain and other health conditions including bilateral carpal tunnel and left shoulder pain. However, the insurer did not refer to any prior history of neck pain.
It was not suggested otherwise, and we are satisfied that the motor accident caused the onset of pain in the cervical spine. We also accept that the motor accident exacerbated the lumbar spine condition although it is difficult to assess the duration of the exacerbation.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[64] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[64] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[65] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[65] [2018] NSWSC 1710 at [29] (Phillips).
The insurer accepted injury and ongoing aggravation in its submissions. It noted the pre-existing back condition. However, there was no evidence of a symptomatic pre-existing cervical spine condition.
The insurer noted the minor nature of the motor accident, the absence of ambulance and hospital treatment, the degenerative pathology and submitted that any injury was minor.
The Panel has considered the extensive medical evidence filed in the proceedings.
The TENS machine was acquired for both cervical and lumbar spine pain. The pain in the cervical spine was clearly caused by the motor accident because of the absence of prior symptoms and consistent symptomatology since the motor accident.
The Panel accepts that the TENs machine is used for cervical spine pain as well as lumbar pain. In these circumstances, the need for the treatment was materially caused by the motor accident.
Reasonable and necessary in the circumstances
Ms Sarwary 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[66], Grove J stated:[67]
“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.”[66] [2003] NSWCA 52 (Clampett).
[67] 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.[68]
[68] 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.[69] 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.
[69] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The insurer referred to cls 4.76 and 4.77 of the Guidelines. The clauses are directed to how an insurer “must manage claims”. It is difficult to see how the five guiding principles in cl 4.76 are determinative of the meaning of “reasonable and necessary in the circumstances” in s 3.24 of the MAI Act although there is a degree of overlap.
Further, the five guiding principles in cl 4.76 are not necessarily consistent. Two of them are directed to a consideration of the injured person and aiding their recovery whilst the last relates to the “best available research evidence”.
The insurer in its internal review notice focused on the last criteria, that is basing “treatment on the best available research evidence”. It is difficult to accept the insurer’s submission that this criteria can be determinative on the entire issue and determined adversely to the claimant. This criteria is often cited by an insurer as a reason to deny a claim for treatment when the correct test for a Medical Assessor and/or a Panel is whether the treatment is “reasonable and necessary in the circumstances”.
Further, focusing on what is the “best available research evidence” will fail to consider the individual circumstances of the injured person.
The claimant submitted that there should be a beneficial construction. There was no submission as to what sections required a beneficial construction nor how those (unknown) sections should be interpreted beneficially. Whilst the claimant referred to some general objectives of the MAI Act in relation to promoting early treatment for injured persons, she did not refer to an opposing objective of keeping third-party policies affordable.
The claimant’s submission was of no assistance and is otherwise legally flawed. As the High Court noted in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd[70] with respect to interpretation:[71]
“[S]tating the purpose is unlikely to solve the problem.”
[70] [2013] HCA 36 at [40] adopting the observations of Gleeson CJ in Carr v Western Australia [2007] HCA 47 at [16].
[71] The various authorities on the role of “purpose” in statutory interpretation are otherwise referenced in Dhupar v AAI Ltd [2023] NSWPICMP 99 at [91]-[92].
As was noted in the submissions, a TENS machine provides an electrical stimulation which is designed to decrease the perception of pain. The TENS machine provides a low varied current across the skin designed to interfere with the transmission of pain.
The cost of the treatment is minimal and was recommended by the treating pain specialist. The intention of the treating specialist was to use this as an aid in reducing reliance of pharmacology.
The Panel, comprised of two medical experts, accept that the treatment is a recognised and appropriate treatment to alleviate a pain condition. The treatment is widely accepted by the medical profession and has been utilised for many decades. It may or may not be effective. The insurer referred to an absence of support in the literature. However, an absence of evidence of effect is not the same as evidence of an absence of effect.
There is no downside with the treatment as it has no adverse effects. As we noted, it has the potential to reduce the perception of pain and reduce reliance on pharmacology.
As is clear from the medical evidence, the claimant presents as pain focused with a depressive condition. In these circumstances, this treatment was tailored to the claimant’s circumstances. We accept that the provision of a TENS machine was reasonable and necessary in the circumstances.
Recovery
The requirement that the treatment “will improve the recovery of the injured person” within the meaning of s 3.28(3) applies when the claimant has only sustained minor injuries. It is unclear whether this dispute requires a determination as it may have been agreed that the claimant has sustained a non-minor psychological injury.
We note that we have not been asked and are not deciding whether the claimant has sustained a minor physical injury.
If the insurer has accepted that the claimant has sustained a non-minor injury of any kind, then the Panel is being asked to determine a medical assessment matter which is of no utility. This is because the “recovery” provision in s 3.28(3) is subject to sub-section (1) which provides that the six-month limitation for statutory benefits applies if:
“[T]he person's only injuries resulting from the motor accident were minor injuries.”
In accordance with s 3.28(3) of the MAI Act, if the claimant has an accepted injury of any kind which is not a minor injury, then the issue of recovery does not apply.
However, for completeness, the Panel, using its medical expertise, is satisfied that a TENS machine will improve the recovery of the claimant particularly in the circumstances of this matter where the claimant is pain focused and is an attempt to reduce the reliance on medication.
CONCLUSION
For these reasons, the Panel concludes that the certificates issued by Medical Assessor Wijetunga are revoked.
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