Thompson v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Thompson v Allianz Australia Insurance Limited [2024] NSWPICMP 597
CLAIMANT:	Belinda Thompson
INSURER:	Allianz Insurance Australia Limited
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	23 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claim for proposed lumbar spine fusion; delay in recorded complaint; clinical note three months after accident indicated back pain commenced previous week; claimant denied accuracy of note; discussion of authorities on fallibility of human recollection and caution in accepting notes recorded by medical practitioners; various factors supported claimant’s history that the motor accident caused discal injury to the lumbar spine; clinical examination of claimant; condition had deteriorated sufficient to warrant surgery; Diab v NRMA Ltd applied and discussed; discussion of causation; material contribution between injury and proposed surgery; AAI Limited v Phillips applied; reference made to injury findings; ongoing degenerative process; injury materially contributed to surgery; Held – proposed surgery reasonable and necessary and caused by the accident; original medical assessment revoked.
DETERMINATIONS MADE:	CERTIFICATE Review Panel assessment of treatment and care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel revokes the certificate of Medical Assessor Home dated 21 August 2023 and issues a new certificate determining that: 1. The following treatment and care: · future anterior lumbar interbody fusion surgery (ALIF surgery) proposed by treating surgeon Dr Ralph Mobbs, RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. 2. The following treatment and care: · future anterior lumbar interbody fusion surgery (ALIF surgery) proposed by treating surgeon Dr Ralph Mobbs, is REASONABLE AND NECESSARY in the circumstances.

REASONS

INTRODUCTION

Ms Belinda Thompson (the claimant) was involved in a motor accident on 16 January 2016. The claimant was a front seat passenger when her vehicle was t-boned by the insured vehicle which collided into the passenger side.[1]
[1] Insurer’s bundle, p 8.
The insurer is liable to pay Ms Thompson any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
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[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[2] Section 60 of the MAC Act.
The present disputes between the parties are whether the treatment provided or to be provided to the injured person is reasonable and necessary in the circumstances and whether any such treatment relates to the injury caused by the motor accident.
These constitute medical assessment matters and medical disputes within the meaning of the MAC Act.[3]
[3] See ss 57 and 58 of the MAC Act.
The medical disputes were referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 21 August 2023 (the Medical Assessment Certificate).
The specific medical disputes were:
· whether the future anterior lumbar interbody fusion surgery (ALIF surgery) proposed by treating surgeon Dr Ralph Mobbs and agreed by Dr Patrick is causally related to the injuries sustained in the subject accident, and
· whether the future anterior lumbar interbody fusion surgery (ALIF surgery) proposed by treating surgeon Dr Ralph Mobbs and agreed by Dr Patrick is reasonable and necessary in relation to the injury sustained in the subject accident.
Medical Assessor Home noted the documented record by the general practitioner (GP) on
28 April 2016 that lower back pain started the previous week and the fact that the claimant continued to drive to work in Goulburn over the three months following the motor accident without experiencing severe low back pain. In these circumstances the Medical Assessor concluded that he did not find it plausible that the claimant suffered an L4/5 intervertebral disc injury caused by the motor accident.
The Medical Assessor otherwise noted the variable documentation of clinical features of right L5 radiculopathy in the medical file which indicated episodes of recurrent L4/5 disc protrusion or peri-discal swelling leading to at least sensory damage to the L5 nerve root. The Medical Assessor noted that clinical signs of L5 myotomal weakness, calf wasting and increased dural tension were absent during his assessment.

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 Personal 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 which were provided.
The Panel also requested the claimant to produce:
“[A]ny physiotherapy, chiropractor or records of any similar treatment for the period from two years prior to and the three-month period after the motor accident.”
The claimant’s solicitor advised the Panel that the chiropractor and physiotherapist “had no records for the period January 2014 to April 2016”.
The report of Dr Dias was served by the claimant in breach of our direction and without and explanation by the claimant’s solicitor. We have not relied on the report given the unexplained breach.

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.
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[12]

MATERIAL BEFORE THE REVIEW PANEL

[12] [2022] NSWSC 372 (Briggs (No 2)) at [73].

Pre-accident records

In December 2010 the GP noted low back pain with no radicular symptoms following an incident when the claimant slipped in a car park after work.[13]
[13] Insurer’s bundle, p 17.
On 16 February 2011 the GP noted that the back injury was generally improving although the claimant still suffered from stiffness with prolonged sitting and standing.[14]
[14] Insurer’s bundle, p 17.
On 14 July 2011 the GP noted the back “is good” and stated that the claimant was “OK with normal duties”.[15]
[15] Insurer’s bundle, p 19.
On 8 November 2011 the claimant reported left low back pain radiating to the buttock[16] after moving garage items over the weekend. The claimant was then certified unfit for work for one week.[17]
[16] Insurer’s bundle, p 19.
[17] Insurer’s bundle, p 69.

Post-accident records

The clinical record of the GP dated 28 April 2016 was in the following terms:[18]
“Lower back pain
Started last week
No obvious trauma or trigger but got worse after long drives to work to Goulburn
Has had lower back pain before 2011 when slipped and fell at work
Also had MBA as a passenger in February, no lower back at the time, no medical review
Had x-ray ordered by a chiropractor – report available, unable to review film on CD.”
[18] Insurer’s bundle, p 25.
The GP then issued a medical certificate that the claimant was unfit for work for two days.[19]
[19] Insurer’s bundle, p 91.
A medical certificate dated 20 October 2016 referred to lower back and radicular pain into the right hip and leg.[20] The certificate noted prior low back pain in 2011 with conservative management and physiotherapy.
[20] Insurer’s bundle, p 13.
On 20 October 2016 the GP noted that the back pain continued following the review in April.[21] Tenderness was noted at the L3/4 level with radicular pain to the right hip and right lateral limb and sometimes pins and needles in the right foot.
[21] Insurer’s bundle, p 26.
A claim form dated 18 February 2017 referred to low back pain and right sided sciatica into the foot.[22]
[22] Insurer’s bundle, p 10.
A CT scan dated 6 March 2017 contained clinical information that the claimant had right-sided radicular pain in the L3/4 distribution. The scan is reported as showing a small disc bulge at L3/4 with no evidence of significant foraminal or central canal stenosis and posterior disc protrusion at L4/5 with moderate central canal narrowing with potential compression of the right L5 nerve root.[23]
[23] Insurer’s bundle, p 92.
A clinical note on 7 February 2018 noted ongoing back pain since the motor accident in February 2016.[24]
[24] Insurer’s bundle, p 28.
On 10 December 2018 the GP noted the claimant had lower back pain radiating to the right buttock and sometimes to the back of the right leg which had been on and off since the motor accident in February 2016. Tenderness was noted over the L5/S1 region.[25]
[25] Insurer’s bundle, p 34.
In August 2019 the GP noted worsening back pain with tenderness over the L3/4 level.[26]
[26] Insurer’s bundle, p 37.
An MRI scan of the lumbar spine dated 9 October 2019 showed mild loss of disc height with focal left foraminal/extra foraminal protrusion at L3/4 and moderate right-sided disc at L4/5 noting the central disc protrusion referred to in the CT scan was not seen on the MRI scan.[27]
[27] Insurer’s bundle, p 175.
In April 2021 the claimant requested a referral from the GP to a treating surgeon to comment on the need for lumbar spine surgery. The referral noted pain in the lower back with radiation to the right leg in the L5 distribution.[28]
[28] Insurer’s bundle, p 41.
An MRI scan of the lumbar spine dated 13 May 2021 noted low back pain radiating to the right leg, was described as showing no significant change from the previous scan and no clear cause for neural compromise.[29]
[29] Insurer’s bundle, p 191.
The claimant consulted Dr Ralph Mobbs, neurosurgeon, by telehealth consultation on
[30] Insurer’s bundle, p 113.
15 July 2021. The doctor noted an onset of symptoms some years previously following a high velocity motor vehicle accident with episodic back and leg symptoms since. Dr Mobbs opined that the likely cause of ongoing symptoms was discogenic and facetogenic pain generators from the L3/4 and L4/5 levels. The doctor recommended a trial of injections targeting the L3/4 and L4/5 levels with hydrotherapy and physiotherapy thereafter.[30]
Dr Mobbs opined that he did not believe that surgery was necessary at that time however stated that the claimant may benefit “down the track” from some form of reconstructive intervention such as a fusion or total disc replacement.
An MRI scan of the right hip dated 10 March 2022 was essentially normal with features suggestive of mild right hip osteoarthritis, no significant joint effusion and minor gluteal tendinopathy with minor oedema in the trochanteric bursa.[31]
[31] Insurer’s bundle, p 192.
An MRI scan of the lumbar spine dated 9 December 2022 showed multilevel facet arthropathy and degenerative disc disease worse at L4/5 bilaterally and moderate to severe neural foraminal narrowing worse on the right side.[32]
[32] Insurer’s bundle, p 306.

Statements

The claimant has provided a series of statements/statutory declarations.
In the statutory declarations sworn dated 10 March 2017[33] the claimant stated that she did not experience immediate pain following the collision and did not go to hospital because she did not think she had sustained an injury. It was her expectation that she would make a full recovery from the accident.
[33] Claimant’s bundle, p 12.
The claimant noted that she suffered a low back strain approximately six years previously which resolved, and she experienced no further problems.
The claimant stated that as a result of the motor accident she felt that her physical condition had deteriorated significantly, she lived in constant pain particularly in the lower back with referred pain in the right leg and foot which significantly impacted on her domestic situation.
The claimant provided a further statutory declaration dated 29 January 2018.[34]
[34] Claimant’s bundle, p 16.
The claimant stated that she was “very shaken and in shock after the accident”. The claimant stated:[35]
“It was the days following the accident my body became stiff and ached. In particular I experienced pain in the lower part of my right back.”
[35] Claimant’s bundle, p 17, [12].
The claimant said that she returned to work on Monday, 18 January 2017 as a corrections officer at Goulburn even though she was in some pain, particularly in the lower back. The claimant stated:
“In about April 2016 I noticed that my physical condition was not improving. The pain in my lower right back was constant and I notice referred pain into my right hip, right leg, extending the numbness in my right foot.”
The claimant provided a further statutory declaration, dated 27 July 2020, when she stated that when she returned to work, she noticed pain particularly in the low back.[36]
[36] Claimant’s bundle, p 28.
The claimant stated that, “from memory”, she attended upon a physiotherapist from around late February 2016, approximately five times. The claimant said stated that, despite the physiotherapy treatment, her physical condition was not improving, and she noticed right hip, right leg and numbness in the right foot.
On 28 April 2016 the claimant stated that she attended Dr Rebecca Pelly at Bowral and was prescribed Panadeine Forte.

Qualified opinions

Dr Scott Harbison, orthopaedic surgeon, was qualified by the insurer and provided a report dated 4 December 2017.[37] The doctor obtained a history that following the motor accident the claimant was “stiff and sore” but able to go to work and had symptoms for two weeks and functioned reasonably well. The doctor noted that about three months later, in April 2016, the claimant woke one day feeling stiff in the lower back with pain particularly in the right side radiating to the hip and lateral thigh and foot. The back pain lasted from April until November or December and then improved.
[37] Insurer’s bundle, p 248.
Dr Harbison noted that pain was mostly in the right buttock and over the lateral aspect of the hip with no recent tingling sensation no symptoms in the left lower limb.
Dr Harbison opined that the motor accident may have caused a soft tissue strain in the lumbar spine. The doctor noted that the claimant had incidental degenerative changes in the lumbar spine with progression of the changes consistent with the natural history of degenerative changes. The doctor noted that a claimant has some clinical features to suggest an enthesitis at the right hip greater trochanter which was incidental to the subject motor accident.
Dr Harbison noted that the claimant had some symptoms extending down the right lower limb but there was no evidence of any radicular pain or objective radiculopathy.
Dr Harbison noted the gap between the motor accident the development of symptoms in the right hip and right lower limb which suggested the injury was only minor, there was a subsequent event for that the symptoms are due to natural degenerative conditions unrelated to the motor accident. He opined that he thought the last was the most likely explanation for the development of the subsequent symptoms.
Dr Patrick, surgeon, was qualified by the claimant and provided a report dated
[38] Claimant’s bundle, p 37.
21 May 2018.[38] The doctor recorded a history that following the motor accident the claimant felt that she had not been significantly injured but was only shaken. Over the ensuing days the claimant was somewhat “stiff all over” but did not contemplate going to a hospital or a doctor as she was not one who complained to doctors. At that time the claimant was aware of low back pain more right sided but continued to work and thought the aches and pains would recover fully.
On examination Dr Patrick noted no muscle wasting, symmetrical ankle and knee jerks and provided a further report dated 18 February 2020 no definite sensory deficits corresponding to any dermatomal or peripheral nerve distribution. The doctor otherwise recommended the claimant proceed to an MRI scan of the lumbosacral spine.

Dr Patrick provided a further report dated 18 February 2020.[39] The doctor then reviewed the scan evidence and opined that at this stage surgical intervention of the lower lumbar spinal levels in the future was a possibility rather than the probability.
[39] Claimant’s bundle, p 48.
Dr Patrick provided a further report dated 23 March 2021.[40] The doctor noted ongoing complaints of low back pain radiating to the right upper buttock and distally down the right leg to the region of the top of the right foot more likely in the L5 nerve root distribution.
[40] Claimant’s bundle, p 50.
Examination findings showed demonstrated sensory deficit of the right calf laterally and to some extent posteriorly corresponding with the L5 nerve root disc distribution with a positive sciatic stretch on the right side.
Dr Patrick opined that the ongoing symptoms were consistent with and as a consequence of the motor accident and opined that the diagnosis was somewhat clearer as the claimant satisfied the criteria for radiculopathy in the L5 dermatomal distribution.
Dr Patrick provided a further report dated 9 December 2021 following a telehealth consultation.[41] On examination the doctor noted marked muscle guarding noting that the previous examination showed sensory deficit in the L5 nerve root distribution. The telehealth consultation on that day limited the doctor’s ability to fully examine the claimant.
[41] Insurer’s bundle, p 130.
Dr Patrick provided a further report dated 11 July 2023.[42] The doctor opined that the claimant had radiation of pain down the right leg distally as far as the right foot in the L5 nerve root distribution. He also opined that with time the claimant will need appropriate surgery at the lumbosacral spine.
[42] Insurer’s bundle, p 300.
Dr Assem, rehabilitation specialist, was qualified by the claimant and provided a report dated 30 August 2021.[43] The doctor recorded a history of the onset of back and left arm pain following the accident and the development of pain radiating to the right thigh and right foot approximately three months after the motor accident.
[43] Insurer’s bundle, p 268.
On examination the doctor noted no sensory loss however observed gross restriction of movement. Dr Assem opined that the back symptoms have progressively worsened with the development of a right sided L5 radiculopathy that has been managed conservatively.
Dr Assem noted that the claimant was unwilling to proceed with injections or surgical intervention at that time but that if the symptoms worsen then it may be necessary for the claimant to undergo surgery.
Associate Professor Shatwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 3 December 2021.[44] The doctor obtained a history that the claimant developed soreness around the lumbar spine following the motor accident which continued for approximately three months until April 2016 when the pain became sufficiently severe for the claimant to attend her GP.
[44] Insurer’s bundle, p 274.
On examination the doctor noted no loss of power in any of the major muscle groups in the lower limbs, no description of any sensory disturbance and no wasting of the lower limbs.
Associate Professor Shatwell opined that the changes on radiology were related to age constitutional factors and the claimant sustained soft tissue injuries from what was a minor collision. The doctor opined that any treatment advocated by Dr Mobbs or Dr Shetty was for age-related constitutional changes in the lumbar spine and not related to the motor accident.
Associate Professor Shatwell provided a supplementary report dated 6 December 2022 following the review of further medical reports.[45] The doctor noted the further material did not change his opinion and that the initial GP consultation in April 2016 noted that the lower back pain started in the previous week.
[45] Insurer’s bundle, p 289.
Dr Charles New, orthopaedic surgeon was qualified by the claimant and provided a report dated 20 December 2022.[46] The doctor obtained a history that the motor accident caused immediate pain in the thoracic and lumbar spine with no leg pain at that time.
[46] Insurer’s bundle, p 294.
On examination the doctor noted hypoaesthesia in the L5 nerve root distribution, decrease straight leg raising on an absent ankle jerk and negative clonus and opined that the claimant has a right sided L5 radiculopathy.
Dr New opined that lumbar spinal fusion surgery does not cure back pain and the only reason for the surgery would be if the right sided radiculopathy was severe. He did not believe that the claimant was then a candidate for spinal fusion surgery.

OTHER MEDICAL ASSESSMENT

A Medical Assessment Certificate issued by Medical Assessor Wilding dated
[47] Insurer’s bundle, p 258.
12 December 2018.[47] The doctor noted a history of the development of low back pain following the motor accident with subsequent consultation with the GP in April 2016 when the pain did not settle.
Medical Assessor Wilding concluded that the claimant suffered a musculoligamentous strain and lumbar disc lesion caused by the motor accident and assessed permanent impairment at 0%.

SUBMISSIONS

Claimant’s submissions undated[48]

[48] Claimant’s bundle, p 2.

The claimant submitted that the incidents referred to in the insurer’s submissions in 2010 and 2011 resolved with rest and conservative treatment. No claim beyond conservative treatment was ever brought by the claimant against her workers compensation insurer in relation to the workplace injury in December 2010.
The claimant submitted that she has provided a series of statutory declarations dated
10 March 2017, 29 January 2018 and 27 July 2020 all of which identify the development of back symptomology following the motor accident. It is submitted that the claimant has consistently reported to all doctors that she suffered symptoms of low back pain with referred pain to the right leg following the motor accident.
The claimant referred to the series of scans undertaken on the lumbar spine and right hip and the referral to Dr Ralph Mobbs who, in a report dated 15 July 2021, opined that the claimant would benefit from fusion surgery down the track.
The claimant submitted that she is ready, willing and prepared to undergo the recommended surgery “once the need for same crystallises”.

Claimant’s submissions dated 18 September 2023[49]

[49] Claimant’s bundle p 5.

These submissions were filed seeking a review of the medical assessment.
The claimant submitted that the Medical Assessor failed to apply the test of causation set out in cls 1.5 to 1.7 of the Guidelines. The claimant submitted that the Medical Assessor failed to consider whether the motor accident was contributing cause to the need for the proposed surgery which was more than negligible. It was otherwise submitted that the Medical Assessor failed to show “active intellectual engagement” with regard to the questions he was asked to determine.
The claimant submitted that the finding by the Medical Assessor that there was pain all over the body is internally inconsistent with the apparent acceptance of the GP clinical note in April 2016 that lower back pain started the previous week.
The claimant submitted that she had provided statutory declarations which identify the development of back symptoms following the accident and the Medical Assessor failed to consider that material.
The claimant referred to her statement dated 10 March 2017 at paragraphs 7-8 and submitted that she took a “stoic approach to her injuries, and considered the pain that eventually developed would dissipate over time”. Reference is also made to the further statement dated 29 January 2018 (paragraphs 12-15) and the statement dated 27 July 2020 when the claimant stated that she was under the misapprehension that she did not think she was injured and therefore did not go to hospital.
The claimant stated that prior to the accident she was not in the habit of attending doctors as she was rarely sick, and she generally thought that she would recover from the accident. This statement is in accordance with the record of Dr Patrick in his report dated 21 May 2018 that the claimant was not one that went to doctors.
The claimant said she saw a physiotherapist in February 2016 on approximate five occasions.
The claimant submitted that if there was any consistency between the various statements then it was incumbent on the Medical Assessor to bring up these inconsistencies (cl 1.41 of the Guidelines).
The claimant submitted that the Medical Assessor treated the lack of contemporaneous evidence as determinative of the issue of causation which was inconsistent with settled authority referring to Owens v Motor Accidents Authority.[50]

Insurer’s submissions dated 13 December 2022[51]

[50] (2012) 61 MVR 245.

[51]Insurer’s bundle, p 332.

The insurer noted that it disputed the proposed surgery and submitted that the claimant had a pre-existing history of lumbar spine symptoms and that the onset of recurring lumbar back pain commenced three months after the motor accident.
The insurer referred to the clinical notes of Highlands General Practice which documented lumbar pain commencing on 9 December 2010 and continuing to November 2011.
The insurer noted that the motor accident occurred on 16 January 2016 and there were no recorded attendances at the GP until 28 April 2016. It relied on the clinical note dated
28 April 2016 of the commencement of lumbar spine pain the previous week.
The insurer noted that it relied on the opinion of Associate Professor Shadwell to the effect that the motor accident was a minor accident and would not have caused a significant injury to the lumbar discs. It also relied on the opinion of Medical Assessor Wilding dated
12 December 2018 of no significant clinical findings when there was an assessment of DRE lumbosacral category 1.

Insurer’s submissions dated 12 September 2023[52]

[52] Insurer’s bundle, p 335.

These submissions were filed opposing the application to seek a further assessment of whole person impairment.
The insurer relied on the opinion of Medical Assessor Home that the claimant did not suffer an intervertebral disc injury caused by the motor accident and at best suffered a soft tissue injury which resolved. This was in keeping with the opinion expressed by Associate Professor Shatwell.
The insurer submitted that there was no basis for an application for further assessment as any deterioration is not causally related to the motor accident.

Insurer’s submissions dated 3 October 2023[53]

[53] Insurer’s bundle, p 338.

These submissions opposed the application to review the medical assessment.
The insurer noted that the claimant’s application for a further assessment of whole person impairment had been accepted by the Commission and allocated to a Medical Assessor. In those circumstances it submitted that it was appropriate to await the outcome of the whole person impairment application.
The insurer submitted that the controversy was whether the lumbar spine fusion surgery was causally related and not whether the permanent impairment was causally related and that the claimant’s reliance on both the permanent impairment guidelines and AMA4 guides was not material to the determination.
The insurer otherwise submitted there were no errors in the Medical Assessor’s findings of causation as he carefully considered the documents provided by the parties, the contemporaneous evidence and the history of late onset of severe back pain three and half months following the motor accident.
The insurer otherwise submitted there was no inconsistency between the findings of pain all over the body and the onset of spinal symptoms three and a half months after the motor accident.

RE-EXAMINATION

Ms Thompson was medically examined by Medical Assessor Dixon. The examination report is as follows:
“Background
The claimant has worked for NSW Corrective Services from 2002 to the present. At the time of the subject motor vehicle accident, she was a Probation Parole Officer and now works in case management.
Social History
She is married and she and her husband live in the Southern Highlands in their own home. Her main hobby was breeding and showing dogs, which she is no longer able to do. She has not been able to groom the dogs or run the dogs on show. She does have difficulty doing heavy household cleaning chores and has difficulty with prolonged standard and meal preparation, cooking and washing up and has difficulty carrying heavy laundry and groceries and doing the garden and cleaning the car. She has difficulty with prolonged driving and does not play sport. She has limited recreational walking on even terrain. She is not able to walk on irregular terrain. She does have some difficulty dressing.
History of the motor vehicle accident
She was a front seat passenger in a Volvo driven by a sales rep at Lindfield with her husband in the back seat. It was being demonstrated to her as a vehicle for sale. As they were travelling along Powell Street at Killara a vehicle on the left failed to give way and collided with the passenger’s side of the vehicle, pushing it to the opposite side of the road until it impacted on the kerbing. The accident was major in that the front wheel of the Volvo snapped off and although the claimant was wearing a seat belt at the time and all the airbags deployed, she had pain in her lower back and left arm.
Police and ambulance attended the scene but she did not require immediate attention. The vehicle was towed away and was later written off.
She was able to return to her usual duties apart from right sided back pain which was aggravated by prolonged sitting and repetitive bending and stooping. She had difficulty doing computer based activities and had to stand intermittently. Three months after the accident she developed significant radicular complaint with pain radiating to the posterior right thigh to the dorsum of her right foot with development of sensory changes in the calf and onto the foot.
History of treatment since the subject accident
She was prescribed analgesia and anti-inflammatory and referred for physiotherapy treatment. She continues physiotherapy core strengthening exercises to date.
She had a CT of the lumbar spine on 6 March 2017 which showed an L4/5 disc protrusion with canal stenosis and the right lateral stenosis, potentially compressing the L5 nerve root. She took Panadeine Forte for pain relief and a subsequent MRI of the lumbar spine on 13 May 2021 showed moderate disc bulging with L4/5 level disc osteophyte change more marked on the right causing mild bilateral femoral stenosis.
She was referred to Dr Ray Mobbs, neurosurgeon, who noted combination of pain at L3/4 and L4/5 levels with facet arthralgia and recommended injections at these levels with PRP injections and post injection hydrotherapy, physiotherapy and therapeutic exercise programme with an exercise physiologist. He also advised the claimant that she may require a spinal fusion.
Current Symptoms
She continued to have pain in her lower back with shooting pain in the right buttock radiating to the posterior aspect of her right thigh in the dorsum of her right foot with loss of sensation extending to the 1st and 2nd toes and had difficulty with prolonged sitting and standing.
At examination at PIC rooms at 1 Oxford Street on 19 July 2024 she presented in a straight forward manner and there was no embellishment.
There was stiffness of her lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm with pain on back extension which was decreased by one half and lateral flexion to the right decreased by one third and that to the left by one quarter. Her straight leg raise on the left was 60 degrees and on the right 50 degrees, associated with low back pain and right sciatica.
Her knee jerks were present and symmetrical. Her right hamstring jerk was difficult to elicit and her ankle jerks were present. There was 2cm of wasting of her right thigh and 1cm of wasting of her right leg below the knee. There was sensory alteration on the dorsal foot extending towards the right great toe in an L5 distribution. Her sciatic nerve root stress test was positive on the right.
She walked with a slow gait and had a limp on the right on toe walking associated low back pain and she was unsteady on heel walking and had to take her weight on the left leg. Her squat test was restricted by one half and associated with back pain and right thigh pain. Her plantar responses were negative, her distal power of the right great toe was grade 4 out of 5.
Radiological investigations
Her investigations as noted above include a CT of the lumbosacral spine on 6 March 2017 which showed a disc protrusion L4/5 with central canal narrowing.
MRI of the lumbar spine on 3 October 2019 showed degenerative change L3/4 and L4/5 with disc bulge at L3/4 with focal left foraminal protrusion with narrowing and L4/5 right sided disc space loss.
Progress MRI of the lumbar spine on 13 May 2021 showed no significant interval change with left L3/4 foraminal stenosis and moderate disc bulge at L4/5.
MRI of the right hip on 10 March 2022 showed mild hip OA, gluteal tendinopathy and trochanteric bursitis.
The chiropractic documents requested were not available.
It was noted in the claimant's third Statutory Declaration that she attended physiotherapy five times during late February to mid-April 2019 and had some chiropractic treatment.
The medical disputes were:
1. Whether the future anterior lumbar interbody fusion surgery (ALIF) by Dr Ralph Mobbs and Dr Bill Patrick is causally related to the subject motor vehicle accident; and
2. Whether future anterior lumbar interbody fusion (ALIF) surgery proposed by the treating neurosurgeon, Dr Ralph Mobbs and Dr Bill Patrick, trauma surgeon, is reasonable and necessary in relation to the subject accident.
Based on her findings today, the claimant has deteriorated since she was assessed by Dr Alan Home.
She has increased low back pain and right L5 radiculopathy.
Today she reported she was taking Tapentadol for pain relief and Mobic as an anti-inflammatory.
The conclusion is that the claimant has had deterioration in her lower back since the subject motor vehicle accident. She has low back pain with lumbar stiffness with dysmetria, erector spinae muscle spasm and right sided L5 radiculopathy.
This is causally related to injuries received in the subject motor vehicle accident.
The proposed ALIF in the lumbar spine by Dr Ralph Mobbs is both reasonable and necessary. The proposed ALIF surgery proposed by Dr Ralph Mobbs is causally related to the injuries received in the subject motor vehicle accident.
There appears have been deterioration in the claimant’s back with ongoing radiculopathy, noting the opinion expressed by Associate Professor Shatwell that she tended to take a stoic approach to her injuries and was not one to visit doctors.
She showed no inconsistency today and presented in a straight forward manner without embellishment.”
The claimant was further questioned by Medical Assessor Dixon and Principal Member Harris on 16 August 2024. The following history was obtained at that time with the questioning undertaken by the Principal Member,
“The claimant stated that at the time of the motor accident she resided in Moss Vale and worked at Goulburn. The car trip each way was approximately 55 minutes. She returned to work on the Monday following the accident.
The claimant agreed that she previously had back pain in 2011 but it wasn’t an ongoing issue and she was pain free for a lengthy period at the time of the motor accident.
The claimant was clear that she suffered from back pain immediately following the motor accident. The accident was described as a serious impact where both cars were “written off”. She said that after the motor accident the back pain was aggravated by the car trips from her residence to place of work and that is why she eventually consulted the GP.
The claimant stated she had physiotherapy at Goulburn at that time and referenced a person who had died in the last 12 or so months. She said that the practise still operated.
The claimant was asked about paragraph 10 of her statutory declaration completed in July 2020 as to when the physiotherapy occurred noted her previous answer that the physiotherapy occurred around the time of the GP visit. The claimant was asked whether the physiotherapy occurred before or after the GP visit. She stated that she could not clearly recall when it was and asked whether the physiotherapy records were available.
The claimant was advised that we had requested the records but her solicitor had not provided them.
The claimant was read the clinical note of the GP dated 28 April 2016. She said that she was aware of the clinical note as it had been mentioned by other doctors.
The claimant said that parts of the note were accurate but that the note was “not entirely true”. The claimant stated that the back pain did get worse with driving, and it may have gotten worse in the previous week before the attendance with the GP. However, the claimant was clear that she had back pain since the motor accident and the doctor may have misinterpreted what she said. Sher specifically denied the reference in the note to no back pain at the time of the motor accident.
The claimant stated that she was prescribed Panadeine Forte by the GP, but the medication made her drowsy and she couldn’t safely perform her duties and also driving the distances under the effects of the medication.
The claimant described the entire litigation process as “awful” and felt that at times she had been described or accused as “untruthful”.
The claimant asked when she would receive the report and was advised in about three weeks. It was obvious from the questions asked by the claimant at the end that she did not understand who the Panel members were and where this examination fit within the entire process. A brief attempt was made to describe our role to the claimant.”

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[54] and Insurance Australia Ltd v Marsh.[55]
[54] [2021] NSWCA 287 at [40], [41] and [45].
[55] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessor’s examination report and the further questioning and provides the following reasons.

Back Injury

A significant issue in the matter is the history recorded by the GP on 28 April 2016. If the note is accurate then, like opinions expressed by other practitioners who have accepted that note, then we could not find that the motor accident caused a disc injury given the significant delay between the accident and the onset of symptoms.
It is medically plausible that a T-bone injury at speed can cause discal injury. The claimant is even more susceptible to injury because the records show that in 2010 and 2011 she suffered from back pain with radicular features. Those symptoms indicate some degeneration in the lower back at that time. Accordingly, the claimant’s back was more susceptible to further injury from a motor vehicle accident.
We otherwise accept the claimant’s evidence, supported by the absence of complaint in the pre-accident clinical records, that the lower back was asymptomatic for many years prior to the motor accident.
Various authorities note the fallibility of human recollection, and the importance of contemporaneous records were available.[56] These authorities note that false memories intrude, in the majority of cases honestly believed, that memories are “fluid and malleable” and constantly being rewritten when they are retrieved.[57]
[56] Onassis v Vergottis [1968] 2 Li Rep 403 at 431; Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Credit Suisse) at [15] – [22]; Campbell v Campbell [2015] NSWSC 784 at [73] – [76]; Watson v Foxman (1995) 49 NSWLR 315 at 319; Nominal Defendant v Cordin [2017] NSWCA 6 (Corbin) at [167] (per Davies J in dissent).
[57] These words are a summation of observations of Davies J in Corbin who in turn referred to Leggatt J in Credit Suisse.
However, and somewhat inconsistently courts have also expressed caution in accepting notes recorded by medical practitioners.[58]
[58] See for example the discussion by the Court of Appeal in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [34]-[36]; Mason v Demasi [2009] NSWCA 227 at [2]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23]; Container Terminals Austral Ltd v Huseyin [2008] NSWCA 320 at [8] and Gulic v O’Neill [2011] NSWCA 361 at [24]. The latter two cases were recently referred to by Macfarlan JA (in dissent) in The Nominal Defendant v Cordin [2017] NSWCA 6 at [100].
Other medical practitioners have considered the matter based on the clinical note of the GP dated 28 April 2016 in concluding that the claimant did not sustain a back injury caused by the motor accident.
The reference by the GP in the clinical note indicates that the claimant was having treatment prior to the initial visit. The GP recorded:
“Had x-ray ordered by a chiropractor – report available, unable to review film on CD”.
This part of the note indicates that the claimant was having some treatment by a chiropractor prior to the GP visit although it does not show how long that treatment occurred.
We do not know what active steps were taken to obtain these records. However, it is unfortunate that they were not obtained and made available to the Panel.
We note that Medical Assessor Dixon examined the claimant, and she was then questioned further by two members of the Panel. It is the Panel’s view that the claimant presented in an honest and forthright manner. Her concession that she could not remember when the initial physiotherapy treatment occurred is consistent with a person attempting, to the best of their ability, to answer questions candidly.
We accept that matters cannot solely be determined on how a person presents. However, we have concluded that the motor accident likely caused discal injury at least at L4/5 for the following reasons:
(a)    the degenerative condition in the lower back as shown by symptoms in 2010 and 2011 indicating radicular symptoms in the lower spine;
(b)    the resolution of those symptoms from 2011 to the date of the motor accident;
(c)    the severity of the accident when both motor vehicles were written off;
(d)    the fact that the accident could have caused discal injury particularly where it was likely that the claimant was degenerative at that level;
(e)    acceptance of the claimant’s evidence that she was symptomatic following the motor accident;
(f)    likelihood that simply driving to work would not cause the onset of symptoms but would likely aggravate a symptomatic condition;
(g)    absence of other factors which would cause an onset of symptomatology, and
(h)    complaints post 28 April 2016 suggesting discal pathology at L3/4 and L4/5 consistent with MRI and CT scans.

Reasonable and necessary

The dispute is 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.[59] The MAC Act otherwise characterises the medical disputes as separate issues.
[59] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].
Ms Thompson 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,[60] Grove J stated:[61]
“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.”
[60] [2003] NSWCA 52 (Clampett).
[61] 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.[62]
[62] 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.[63] 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.
[63] 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.
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”.
We are satisfied that the surgery proposed by DR Mobbs (anterior lumbar interbody fusion at L3/4 and L4/5) is both reasonable and necessary based on the examination findings of Medical Assessor Dixon and for the following further reasons.
We accept that the surgery proposed by Dr Mobbs is accepted by the medical experts on the Panel as being appropriate. We consider the proposed fusion will likely alleviate pain generating from the intervertebral disc disruption at L3/4 and L4/5.
Medical Assessor Dixon noted sensory alteration on the dorsal foot extending towards the right great toe in the L5 distribution, that is from the L4/5 disc with a positive nerve root stress test. Other doctors have noted altered sensation from that level and the level above whilst other practitioners have not found objective changes. We can only comment upon Medical Assessor Dixon’s findings although we observe that straight forward and reliable patients can present differently at times, that is the symptoms can vary over time. In December 2018 Medical Assessor Wilding noted that the motor accident caused a lumbar disc lesion.[64] We also accept that the lumbar spine condition has deteriorated over time and this, in part, explains the differing symptoms.
[64] Insurer’s bundle, p 262.
The claimant is in extensive pain and has undergone various other treatments. The decision to undergo surgery has been delayed whilst conservative measures have been exhausted. Previous doctors have noted symptoms in the L5 distribution and did not recommend surgical intervention at that time. However, we are satisfied that the claimant’s signs have significantly deteriorated such that the surgery is now reasonable and necessary. A two-level fusion is appropriate given the discal pathology at the two levels noting the radicular symptoms are in the L5 distribution.
The cost of the treatment is extensive and is a factor against undergoing the treatment. However, we accept that the claimant is in significant pain and the proposed treatment, will, to a significant extent, be effective in relieving the radicular symptoms and discogenic pain.

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.[65]
[65] [2018] NSWSC 1710 (Phillips) at [29].
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.[66] These principles are well settled and equally apply to the causal relationship of treatment under the MAC Act by reason of the same statutory language.
[66] [2019] NSWCA 324.
Based on our findings on the nature of the injury to the discs at L4/5, we accept that the motor accident has materially contributed to the need for surgery. We also accept that the injuries to the disc would likely deteriorate over time in accordance with natural degeneration contributed by the discal injury which accelerated the underlying process. We are satisfied that the significant motor accident aggravated the disc pathology such that the motor accident remains relevantly causative of the need for surgery.

CONCLUSION

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

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Citations

Thompson v Allianz Australia Insurance Limited [2024] NSWPICMP 597

Cases Citing This Decision

0

Cases Cited

20

Statutory Material Cited

0

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

[2024] NSWPICMP 597

23 August 2024