Tomic v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Tomic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 180
CLAIMANT:	Dragica Tomic
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	4 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 18 May 2017 from a rear-end collision; claimant re-examined; treatment disputes; spinal injections (past) and proposed fusion surgery; re-examination by Medical Assessor showed radicular symptoms from the L5/S1 disc and claimant genuine; discussion on separate issues of causation and reasonable and necessary; underlying asymptomatic back condition susceptible to further disc injury; consistent complaints; past injections recommended, appropriate and partially effective; discussion of appropriateness of proposed surgery; relevance of radicular complaints; surgery will likely alleviate radicular symptoms whilst it may not alleviate back pain in the longer term; Held – both treatment dispute reasonable and necessary and caused by the motor accident; original assessment revoked.
DETERMINATIONS MADE:	Medical Assessment – Treatment and Care 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 Woo dated 4 July 2022 and issues a new certificate determining that: The following treatment and care: · L5 and S1 transforaminal epidural steroid injection and pulsed radiofrequency and bilateral L5/S1 medial branch blocks provided by South West Pain Clinic, Dr Laurent Wallace; and · L4-S1 lumbar laminectomy and fusion operation recommended by A/Prof. Mark Sheridan as per surgery request dated 27 May 2020 IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · L5 and S1 transforaminal epidural steroid injection and pulsed radiofrequency and bilateral L5/S1 medial branch blocks provided by South West Pain Clinic, Dr Laurent Wallace · L4-S1 lumbar laminectomy and fusion operation recommended by A/Prof. Mark Sheridan as per surgery request dated 27 May 2020 RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT.

REASONS

BACKGROUND

Ms Dragica Tomic (the claimant) was involved in a motor accident on 18 May 2017. Ms Tomic was stationary in her motor vehicle when it was rear-ended by the insured vehicle. Airbags were not deployed but the claimant’s vehicle was not driveable and towed away.
The insurer is liable to pay Ms Tomic any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The dispute before the Panel is whether:
• Past treatment: L5 and S1 transforaminal epidural steroid injection and pulsed radiofrequency and bilateral L5/S1 medial branch blocks provided by South West Pain Clinic, Dr Laurent Wallace; and
• Proposed future treatment: L4-S1 lumbar laminectomy and fusion operation recommended by A/Prof. Mark Sheridan as per surgery request dated 27 May 2020,
is “reasonable and necessary in the circumstances” and “relates to the injuries caused by the motor accident”.[1] These are medical disputes within the meaning of the MAC Act.[2]
[1] This was confirmed by the parties in response to a direction dated 21 October 2022.
[2] See ss 57 and 58 of 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[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Woo who issued a Medical Assessment Certificate dated 4 July 2022 (the Medical Assessment Certificate).[4] The Medical Assessor noted decreased sensation in the right lower limb not localised to any spinal nerve root distribution, no weakness or muscle wasting, and tendon reflexes were normal and symmetrical.
[4] Claimant’s bundle, p 92.
The Medical Assessor found that the lower back symptoms are degenerative changes rather than spinal nerve damage or instability with no confirmed diagnosis of radiculopathy in the lower limbs. He found that the past and proposed treatments were not caused by the accident and not reasonable and necessary.

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.[5]
[5] 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.[6]
[6] 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[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] 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.[8]
[8] 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.[9]
[9] 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.[10]
[10] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[11]. In Raina v CIC Allianz Insurance Ltd[12] 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.”
[11] See s 3B(2) of the CL Act.
[12] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act. The observations are still pertinent to the presently constituted Panel.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundles of documents in accordance with the initial Direction. The claimant filed further submissions addressing the issues for consideration by the Panel.[13] The insurer filed further submissions in response.[14]
[13] Claimant’s bundle, attachment at start.
[14] Insurer’s bundle, p 2.
On 13 April 2023 the claimant filed further material, specifically a report of Associate Professor Sheridan dated 24 February 2023 and an MRI scan dated 2 February 2023.
The MRI scan is reported as showing left paracentral impingement of the left L5 nerve root, and a low-grade right paracentral L5/S1 bulge with possible irritation of the right S1 nerve root.[15]
[15] Late Application, p 4.
The report of Associate Professor Sheridan noted the new scan showed “the same changes she has had previously” with complaints of persisting back and bilateral leg pain.
The insurer responded to the late application as follows:
“The Insurer does not object to the late additional documents. The reports self-evidently are a reiteration of previous medical records which are adequately addressed in the Insurer's submissions.”
Given the medical disputes before us, we have limited the examination of the medical evidence to the lumbar spine.

Pre-accident records

Clinical notes in March 2005 record low back pain and right sciatica which may be related to pregnancy.[16] In August 2005 there is reference to right hip and right lower leg pains since February 2005.[17]
[16] Insurer’s bundle, p 278.
[17] Insurer’s bundle, p 326.
Dr Ibrahim Hanna provided a report dated 26 October 2005 noting treatment since February 2005 for lower back pain radiating to right leg typical of nerve root pathology or sciatica during pregnancy.[18] Various scans and x-rays were organised with review following these tests.
[18] Insurer’s bundle, p 435.
A certificate dated 5 December 2005 referred to chronic right hip and right lower limb pain.[19]
[19] Insurer’s bundle, p 432.
In February 2006 there is a reference of prior referral for MRI scan from T1-S5 (sic L5) which had not been undertaken.[20]
[20] Insurer’s bundle, p 328.
The clinical notes of Dr Kris Tomka, general practitioner, from 3 July 2014 to 14 May 2016 do not refer to low back pain.[21] In a report dated 1 July 2019, Dr Tomka confirmed that he had treated the claimant since 3 July 2014, and that Ms Tomic was in excellent health until the motor accident.[22]
[21] Claimant’s bundle, pp 4-5.
[22] Claimant’s bundle, p 66.

Initial medical treatment following the motor accident

The ambulance record noted rear end collision at low speed with minimal damage to both cars. Pain was noted to left side occipital area of head.[23]
[23] Insurer’s bundle, p 41.
The emergency department discharge referral noted low speed motor accident without airbag deployment.[24] Neurological examination was unremarkable with “upper and lower limbs sensation and motor grossly normal”.
[24] Insurer’s bundle, p 38.

Radiology

A CT scan of the lumbosacral spine dated 18 November 2017 showed degenerative changes at the L5/S1 level.[25]
[25] Insurer’s bundle, p 90.
An MRI scan of the lumbar spine dated 8 December 2017[26] showed discovertebral changes at L4/5 and L5/S1 with mild lateral recess narrowing particularly at L5 on the left.
[26] Claimant’s bundle, p 38.
A Bone scan with SPECT dated 18 January 2018 showed discovertebral degenerative arthritis in the L5-S1 level with bilateral facet joint arthroplasty.[27]
[27] Claimant’s bundle, p 40.
An MRI scan of the lumbar spine dated 3 September 2018 showed discovertebral changes at L4/5 and L5/S1 with right paracentral L5/S1 disc protrusion impinging on the right S1 nerve root and left L5 lateral recess root impingement.[28]
[28] Claimant’s bundle, p 46.
A Bone scan dated 25 March 2019 showed discovertebral degenerative arthritis at L4/5 associated with spondylolisthesis and mild arthritis in the bilateral L4 pars defect.[29]
[29] Claimant’s bundle, p 63.
An MRI scan of the lumbar spine dated 4 February 2022[30] showed right paracentral L5/S1 annular tear with right S1 impingement and L4/5 disc bulge which may be irritating the left L5 nerve root.
[30] Claimant’s bundle, p 90.

General Practitioner

The claimant first consulted Dr Kris Tomka on 19 May 2017 complaining of pain in the upper and lower back, neck and both shoulders.[31] The low back is repeatedly mentioned in the notes and Mersyndol Forte was prescribed. A medical certificate dated 27 June 2017 completed by Dr Tomka referred to initial treatment on 19 May 2017 with injury to the neck, upper and lower back.[32]
[31] Claimant’s bundle, p 3.
[32] Claimant’s bundle, p 35.
In a report dated 6 September 2017, Dr Tomka noted that the injuries were not fully investigated and treated.[33]
[33] Claimant’s bundle, p 37.
Physiotherapy treatment commenced on 29 May 2017. Low back pain was treated.[34]
[34] Claimant’s bundle, pp 7 – 24.
Dr Tomka provided a report dated 1 July 2019[35] noting treatment since July 2014 with the claimant being in “excellent health” prior to the motor accident. Ongoing low back pain and bilateral leg pain was noted with neurological examination of the lower extremities recorded as normal.
[35] Insurer’s bundle, p 252.

Claim form

The claim form dated 29 June 2017 reported that the motor accident caused injuries to the upper and low back.[36]
[36] Insurer’s bundle, p 34.

Treating opinions

Dr Wallace

Dr Laurent Wallace, pain specialist, provided a report dated 19 June 2019.[37] The doctor noted pain down the leg radiating in the right L5 and S1 dermatomes from “some associated numbness”. Dr Wallace stated that examination showed decreased sensation in the right S1 and L5 dermatomes.
[37] Claimant’s bundle, p 64.
Dr Wallace recommended medial branch blocks of the L5/S1 facets and potentially transforaminal epidural steroid injection and pulsed radiofrequency to right L5 and S1. The claimant was “not keen on these” at that time due to negative experience with previous injections.
In a further report dated 24 July 2019, Dr Wallace described right L5 and S1 radiculopathy and again recommended right L5 and S1 medial branch blocks.[38] On 2 October 2019 Dr Wallace requested approval for right L5 and S1 transforaminal epidural steroid injection and pulsed radiofrequency and bilateral L5/S1 medial branch blocks.[39]
[38] Claimant’s bundle, p 71.
[39] Claimant’s bundle, p 72.
In a report dated 16 January 2020,[40] Dr Wallace explained the reasons for the various injections. The doctor stated that medial branch blocks were the appropriate intervention to determine whether a significant proportion of her pain is coming from the facet joint arthritis.
[40] Claimant’s bundle, p 81.
The doctor otherwise referred to the MRI scans and opined that the nerve blocks have a reasonable prospect of providing significant relief to the leg pain.
Dr Wallace noted a number of other therapies have inadequately managed the pain or produced side effects.

Dr Protulipac

In July 2019 Dr Protulipac, psychologist noted ongoing treatment for chronic pain, depression and anxiety which developed following the motor accident.[41]
[41] Insurer’s bundle, p 84.

Associate Professor Sheridan

Associate Professor Sheridan has provided a series of reports.[42] The following is a brief summary.
[42] Claimant’s bundle, pp 101-124
Associate Professor Sheridan initially examined the claimant on 28 November 2017 recommending MRI scans and a fresh approach to rehabilitation through an exercise program. On 22 October 2018 the doctor noted flare ups of low back and right leg pain and recommended further review after the injections. On 7 December 2018 the Associate Professor noted significant improvement in leg symptoms after the injections.
On 17 April 2020 the Associate Professor noted the recent MRI scan was consistent with back and leg symptoms. In light of the failure of conservative treatment and increasing pain and disability, the doctor recommended an L4-S1 laminectomy and fusion.[43] The doctor noted the risks and complications of the procedure and that the claimant “may be left with some persisting back pain” and “could still require further operations in the future”.
[43] Claimant’s bundle, p 105.
On 12 May 2020 the Associate Professor stated that neurological examination showed no objective findings, and the main problem was pain.
On 16 December 2020 the Associate Professor noted significant deterioration in back and leg symptoms with left leg pain.[44]
[44] Claimant’s bundle, p 108.
On 12 January 2021 the Associate Professor noted further deterioration in back and leg symptoms including bilateral leg pain. Surgery was again recommended.[45]
[45] Insurer’s bundle, p 946.
On 7 February 2022 Associate Professor Sheridan noted worsening pain and leg symptoms. The claimant was then placed on the public waiting list.[46]
[46] Insurer’s bundle, p 950.
In his report dated 4 October 2022, Associate Professor Sheridan stated:[47]
“[I]t is certain that this patient does have radiculopathy and leg pain consistent with her injury and therefore surgery has a good success rate as previously stated. There is quite good evidence and literature supporting this approach and I propose that for this patient and this is the standard care for this patient’s condition.
The pain that we are trying to trat is nerve pain particularly in the legs. We may help her back pain but the symptoms in her legs and the radicular symptoms are the main symptoms that would suggest surgery as the next appropriate step. The patient has radicular symptoms in the leg that is pain in her legs. She does not have clinical sign of radiculopathy such as absent reflex but this does not limit the potential success of the surgery.
With the respects of the radiology that surgery has helped. I refer you to the MRI scan that she on the 4^th February 2022 and particularly the conclusion showing that she has changes at the L5-S1 and L4-5 discs with right S1 nerve root compression and left L5 nerve root irritation in the lateral recess.
With respect to my opinion that the requirement for surgery remains solely as a result of the motor vehicle accident. Whilst the patient had some back pain in 2005 this had settled and her recurrent pain and therefore her current requirement for surgery occurred after the motor vehicle accident. I am of the view having seen this patient for quite some time now that if it had not been for the motor vehicle accident she would not be in the situation she is in today with her ongoing pan and requirement for surgery.”

Qualified opinions

[47] Claimant’s bundle, p 113.

Dr Davis

Dr John Davis was qualified by the claimant and provided a report dated 4 September 2018.[48] The doctor noted central tenderness at the lumbosacral level and bilaterally over the adjacent facets more so on the right side. Straight leg raising produced back pain on the right side with dorsiflexion of the ankle and absence of a right ankle jerk.
[48] Claimant’s bundle, p 47.
Dr Davis diagnosed disc injuries to the lumbar spine with impingement and aggravation of pre-existing asymptomatic degenerative changes.

Dr Giblin

Dr Peter Giblin, orthopaedic surgeon, was qualified by the claimant and provided a report dated 6 February 2018.[49] Low back symptoms were reported as radiating down the posterior aspect of both thighs but not past the knees.
[49] Claimant’s bundle, p 41.

Motor strength of the lower limbs was normal although reflexes were diminished, and the right ankle jerk was absent. Dr Giblin diagnosed a soft tissue injury to the low back with referred symptoms to the lower extremities.
Dr Giblin provided a further report dated 27 April 2020.[50] On examination the doctor noted a flicker of reflexes in the left ankle and knees, absent right ankle jerk and medial hamstring jerks.
[50] Claimant’s bundle, p 82.
Dr Giblin opined that there were soft tissue symptoms in the low back with referred symptoms to the right lower extremity.

Dr Stephenson

Dr Stephenson was qualified by the insurer and provided a report dated 20 September 2018.[51] The doctor noted no objective findings of radiculopathy in the lower extremities. He did note complaints of pain in the posterior right leg including heel and lateral ankle which “could be regarded as non-radicular symptoms”.[52]
[51] Insurer’s bundle, p 209.
[52] Insurer’s bundle, p 211.

Journal articles

The insurer has attached medical journal articles of 400 pages in length.[53] We attach a brief summary having considered this material noting that portions of the material discuss cervical radiculopathy/surgery and the relevance of those articles to the present dispute is not evident.
[53] Insurer’s bundle, pp 524-924.
An article by Sarrami et al doubted the effectiveness of spinal surgery under motor accidents compensation for claimants without a fracture or dislocation.[54]
[54] Insurer’s bundle, p 536.
Harris et al in an article headed “Lumbar spine fusion; what is the evidence”, noted the increased occurrence of lumbar spine fusion which was a high-cost burden with risk of serious complications.[55] The authors noted that absence of high-quality systematic reviews and risk of bias. With these qualifications, the authors concluded that the available evidence did not support the hypothesis that spinal fusion confers a clinical benefit compared to non-operative alternatives for low back pain associated with degeneration. Spinal fusion should only be performed “in the context of high-quality clinical trials”.
[55] Insurer’s bundle, p 543.
Brox et al concluded[56] that patients did not have a better long-term improvement four years after instrumental fusion compared with cognitive intervention and exercise.
[56] Insurer’s bundle, p 548.
Gibson et al concluded that the available scientific evidence from randomised trials did not support the use of instrumental fusion for degenerative lumbar spondylosis.[57]
[57] Insurer’s bundle, p 864
Anderson et al concluded that return to work rates after fusion surgery was low, particularly where there was pre-operative depression.[58]
[58] Insurer’s bundle, p 916.

OTHER MEDICAL ASSESSMENT

In an assessment of permanent impairment dated 27 January 2020,[59] Assessor Cameron noted the claimant reported non-dermatomal sensory changes in the right lower extremity. There were no neurological abnormalities found in the lower extremities.

SUBMISSIONS
[59] Claimant’s bundle, p 73.

At the outset we observe that this is a new assessment. There are submissions directed to persuading the President’s delegate[60] that there was error in the previous assessment or in otherwise seeking a further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error. Having noted that, the Panel is indebted to the detailed late submissions filed by the parties with the bundles of documents which addressed the issues before us.

Claimant’s submissions dated 23 November 2022[61]

[60] Or the relevant predecessor.

[61] Insurer’s bundle, p 2.

The claimant is some detail referred to the medical treatment post-accident and the various opinions provided by treating and qualified doctors. It submitted that it could never have been credibly asserted that a single episode of back pain in 2005 could be relevant to the determination of causation in 2020 or part of an ongoing continuum of back pain.
The claimant also submitted that the reports of Associate Professor Sheridan, when read in their totality, stated that the surgery related to leg pain of a radicular nature referred from the back. It was suggested that the original Medical Assessor did not examine the legs and a repeat examination was required.
The claimant acknowledged that the Panel is required to make its own determination, significant weight should be given to the opinion of Associate Professor Sheridan who treated the claimant on multiple occasions over a five-year period. Similarly, the opinion of Dr Wallace on the subsidiary treatment should be given significant weight.
The claimant noted that Associate Professor Sheridan accepted in a report dated 4 October 2022 that there were clinical signs of radiculopathy such as an absent reflex. It was submitted that these were “non-verifiable” radiculopathy, words which “only have magic with respect to determination of whole person impairment as they are relevant to establishing the proper DRE category”. The claimant submitted that they are “meaningless in the context of this dispute”.

Claimant’s submissions undated[62]

[62] Claimant’s bundle, p 116.

These submissions sought a review of the certificate alleging the certificate was incorrect in several material respects.
The claimant noted that the Medical Assessor failed to have regard to the totality of Associate Professor Sheridan’s reports and that it was incorrect to find that the surgery was suggested for back pain.
The claimant noted that the Medical Assessor did not specify the literature upon which he relied. Notwithstanding, she submitted that “any reliable medical ‘literature’ would confirm that laminectomy and fusion surgery is often indicated in response to radicular pain in the legs referred from the back, as clinically found by Associate Professor Sheridan”.[63]

Insurer’s submissions dated 23 November 2022[64]

[63] Claimant’s bundle, p 119.

[64] Insurer’s bundle, p 2.

The insurer filed these submissions in response to the claimant’s late submissions. It noted that this was a low-speed accident evidenced by the ambulance report, discharge referral from Westmead Hospital, no airbag deployment and property damage photographs. The hospital notes recorded no neurological compromise and nil issues with mobilising.
The insurer noted Dr Hanna’s record dated 26 October 2005 noting admission on 13 February 2005 for low back pain radiating to the right leg. The consult dated 20 February 2017 referenced a referral for an MRI scan.
The insurer submitted that Associate Professor Sheridan found no signs of verifiable or non-verifiable radiculopathy. The symptoms do not follow a dermatomal pattern. With respect to causation, the doctor did not consider the objective evidence with regards to the motor accident.
The insurer submitted that the imaging shows common degenerative changes.
The insurer highlighted that the medical records show “a systematic absence of any verified neurological features”. It submitted that there is extensive medical literature that the proposed surgery is not effective in the management of pain alone, particularly given the “significant biopsychosocial barriers towards recovery”.

Insurer’s submissions dated 26 August 2022[65]

[65] Insurer’s bundle, p 928.

These submissions were filed opposing the application to review the Medical Assessment Certificate. The submissions concerning what material was before the original Medical Assessor have no relevance to this appeal.
It otherwise submitted that the Medical Assessor “conducted a complete examination” and referenced literature served in the proceedings.

Insurer’s submissions undated[66]

[66] Insurer’s bundle, p 21.

The insurer referred to the clinical note in 2005 of low back with radiating right leg pain and referral for MRI scan on 20 February 2017.
The insurer noted the ambulance record of a low-speed accident with transportation to hospital and discharge on the same day. The discharge referral from Westmead hospital noted a low-speed accident. The photographs of the property damage are consistent with the ambulance and hospital records of a low speed.
Employer records indicate that the claimant had two days off work and returned to full hours and duties. This was confirmed by Assessor Cameron.
Assessor Cameron found that the claimant only sustained soft tissue injuries to the spine.
The insurer’s submissions confuse causation and the issue of “reasonable and necessary”. It submitted:[67]
“The Insurer submits that although the request itself for the procedure is related to the subject accident, the need for the procedure is not causally related to the subject accident as the procedure is not actually reasonable and necessary and thus not needed.”
[67] Insurer’s bundle, p 22, paragraph 16.
The insurer submitted that the scans show no imaging effects related to the accident which otherwise show longstanding pathology with no instability in the lumbosacral region. It submitted that Professor Sheridan has not provided any “clinical rationale or evidence to support at these levels”[68] and that “vague” neurological findings have not been replicated by other medical practitioners.
[68] Insurer’s bundle, p 23, paragraph 18.
It otherwise submitted that the medical records highlight a systematic absence of neurological features despite non-verifiable radicular features being reported in a non-dermatomal distribution. The need for surgery is not supported by provocative testing or injections isolating the offending level.
The insurer made submissions on cervical spine surgery. The submissions are difficult to follow in the context of the present dispute. To the extent that the submissions are relevant to the present dispute, the insurer submitted that the claimant would not be a good candidate for surgery as there has not been a progressive neurological deficit and there is a lack of functional improvement.
The insurer submitted that the attached literature shows that the proposed surgery is not effective in the management of pain alone given the significant biopsychosocial barriers towards recovery including disabling pain, functional impairment, low general health and psychiatric comorbidities.
The insurer referred to Anderson et al which noted that return to work rates following fusion was low when associated with pre-existing depression.
It also referred to the authors of the Cochrane Library Review which observed that there was “no scientific evidence about the effectiveness of any form of surgical decompression of fusion for degenerative lumbar spondylosis compared with” other forms of treatment. It also noted that peer reviewed literature was that the improvement may be noted in the short term but no long-term benefits for radiculopathy and mild myelopathy.
The insurer highlighted Professor Sheridan’s opinion in the April 2020 report that the proposed treatment will likely result in ongoing persistent pain and require future surgical procedures.
The insurer noted Dr Harris’ 2018 study which concluded that the available evidence does not support the hypothesis that spinal fusion confers clinical benefits compared to non-operative alternatives for back pain.
The insurer concluded that the scans showed common degenerative changes, there were no radicular signs in an appropriate nerve root level and there were “significant biopsychosocial barriers whereby the surgical outcomes were poor”.

RE-EXAMINATION

Ms Tomic was medically examined by Medical Assessor Gibson on 14 April 2023. The examination report is as follows:
“Ms Tomic attended today as arranged for assessment in St Leonards. She was unaccompanied.
PRE-ACCIDENT MEDICAL HISTORY
Ms Tomic had had a previous episode of low back pain and right-sided sciatica in 2005 with onset at 7 months' pregnancy. She said it had taken about 12 months for this condition to totally resolve, and there had been no recurrences.
There was no other history of low back symptoms.
There was no history of any significant accidents, including no prior motor accidents or work injuries. There were no relevant medical or surgical issues.
RELEVANT PERSONAL DETAILS
Ms Tomic was born in the former Yugoslavia. She was a refugee to Germany in 1992, arrived in Australia in 1993.
She commenced full-time work as kitchen hand and cook in 2003, working in this capacity until about 2005.
She next worked as a customer service officer at a St Vincent De Paul store.
In 2017, she commenced full-time administrative work with Douglas Hanley Moir Pathology. She said she was initially working on a full-time basis, six hours a day five days per week. She had had a few days off work after the accident, and then got back to work because she had only started the job recently and did not want to risk her employment. Then, in August 2018 she reduced to four days a week, but was still working six hours a day. In late 2018, she reduced to her current time regime of six hours a day three days a week. She maintained that she had progressively reduced her working hours due to her low back symptoms arising from the subject accident.
HISTORY OF THE MOTOR ACCIDENT
Ms Tomic was the seat-belted driver of Mercedes E240 sedan. She was travelling home from work in the early evening. She had stopped at a red light and was waiting to make a right turn, when another vehicle collided with the rear of her car. No airbags deployed. She said her car was towed and later repaired, the repairs taking almost three months.
She said she was shaking and feeling faint after the impact, so couldn’t get herself out of the car and had to be helped out by ambulance officers. She was then transferred to Westmead Hospital where she was observed for several hours prior to being discharged home.
She said the onset of the low back pain was soon after her arrival home, and symptoms were significantly worse the next morning with pain spreading across the low back.
She said it was a few months later before she noticed any pain spreading to her legs, right greater than left leg. She said the pain became so bad she was having difficulty walking.
She visited her general practitioner, Dr Tomka the day after the subject accident. She was prescribed Nurofen Forte and referred for physiotherapy. She was initially attending twice weekly then weekly to Holistic Physiotherapy in Liverpool.
It was about six months later when she came under the care of Dr Sheridan, Neurosurgeon, first seeing him on 28 November 2017. He had referred her for spinal corticosteroid injections in November 2018 and December 2018. She said she enjoyed some improvement in her symptoms for several months after these injections, but then the pain returned to previous levels.

She had taken Tramadol and Endone for pain.
On 19 June 2019, she visited Dr Laurent Wallace, a pain physician. He made various recommendations over time, including medial branch blocks of the L5-S1 facets, transforaminal epidural steroid, and pulsed radiofrequency to right L1-S1. Ms Tomic stated her last review with Dr Wallace was in 2019.
CURRENT TREATMENT
Ms Tomic takes combination analgesic Paracetamol 450 mg, Codeine 30 mg, Doxylamine 5 mg, one tablet twice daily. She sometimes also takes two paracetamol and one Ibuprofen.
The only proposed treatment was the injection therapy and surgical treatment.
When asked about this, she indicated she would be happy to proceed with the surgical treatment, but regards the recommendation made for injection therapy as being too long ago to be relevant to her current symptoms, which have worsened over time.
CURRENT COMPLAINTS
Ms Tomic described constant low back pain rated at 7-9/10 (zero being no pain and 10 being worst pain) with referral down to right buttock, down the back of right leg, right calf, and into her right foot. There is numbness in a similar distribution in the right leg. Less frequently, there is pain in a similar distribution into the left leg.

PHYSICAL EXAMINATION
Ms Tomic weighed 84 kg. She had a normal gait. She could walk and stand on heels and toes. Circumferential measurements of the thighs were 45 cm and calves 38 cm. There was no muscle wasting. She had normal and equal power in both lower limbs. Straight leg raise was 10 degrees bilaterally when supine, but when seated, closer to 80 degrees bilaterally. Neurotension signs were negative bilaterally. Lower limb reflexes were present and symmetrical. There was reduced sensation of the left great toe, lateral aspect right thigh/right calf, lateral border of right foot, and sole of right foot, and right great toe.
Ms Tomic’s presentation was genuine.
CONCLUSIONS
Ms Tomic is a 55-year-old woman with a prior history of degenerative spinal disease and a prior history of low back pain with likely disc involvement causing radicular pain into the right leg. However, it appears she has been asymptomatic since 2005.
Dr Sheridan writes to the referring general practitioner, Dr Kris Tomka on 24 February 2023 following review on 21 February 2023. He again recommends L4-S1 lumbar laminectomy and fusion.
Based on the available history and evidence, the Panel accepts that Ms Tomic had sustained an aggravation of pre-existing degenerative disease in her lumbar spine as a consequence of the subject accident. Whilst there was likely some pre-existing vulnerability at the L5/S1 disc, there had been no symptoms or objective findings in relation to this pathology since 2005. Then, following the subject accident, her history was of constant low back pain and radicular symptoms into both legs.
Dr Sheridan on 30 January 2018 comments that bone scan shows inflammation at the L5-S1 disc but no other abnormality. But no surgery was indicated at that stage.
The Panel’s view was, this was because other measures could be tried to manage the symptoms, and there was also the potential for natural recovery to occur, meaning the disc swelling could resolve. However, by 8 April 2020 the lower back pain was getting worse, with pain spreading to her legs particularly on the right, with associated paraesthesia and weakness. At that stage, after failed conservative therapy, surgery is recommended. He later adds that she has tried all reasonable and necessary alternative treatments.
At the time of the Panel exam, she had some objective signs of L5/S1 disc pathology, being the sensory changes in S1 territory. However, there were insufficient criteria for this to be considered as radiculopathy as per the PIC Guidelines. However, the symptoms and signs were consistent with the radiological findings of L5/S1 disc pathology and therefore it is reasonable that the proposed surgery to the L5/S1 disc could improve the situation.
The proposed surgery and injection therapy are interventions were proposed to reduce the extent of referred leg pain and paraesthesia, even in the absence of any other features of radiculopathy.”

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[69] and Insurance Australia Ltd v Marsh.[70]
[69] [2021] NSWCA 287 at [40], [41] and [45].
[70] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessors’ examination report and adds the following further reasons.

Lumbar spine injury

The claimant complained of low back symptoms within a short period following the motor accident in a setting where there were no recent prior lumbar spine complaints. We note that there were lumbar spine complaints in 2005 with right leg symptoms.
We agree with the claimant’s submissions that there is an absence of reference to low back symptoms since approximately 2006. The claimant’s evidence that her low back was asymptomatic prior to the motor accident is otherwise supported by the opinion of Dr Tomka who treated the claimant for over two years prior to the motor accident and noted that she was in excellent health.

We accept the claimant’s evidence that the low back was asymptomatic prior to the motor accident.
Since the motor accident there has been a constant complaint of low back and radicular symptoms. The explanation for the onset of these symptoms is the pre-existing low back pathology, at L4/5 and L5/S1, which has been aggravated by the motor accident.
The MRI scans in 2017 and 2022 show the potential for impingement at both L4/5 and L5/S1 levels. The suggestion of impingement in the MRI scans supports the notion that the discs may swell with activity showing radicular features in the lower limbs. At other times the swelling may subside, and the radicular features may not be evident.
In its submissions the insurer questioned the examination findings of Professor Sheridan and contrasted those findings with other medical practitioners. We have explained above how the radicular symptoms may vary over time. There is a plausible medical basis for radicular type symptoms given the MRI scans show potential impingement on the nerve roots in the lower discs. In any event, a number of medical practitioners found radicular symptoms (as opposed to radiculopathy).
The insurer noted the minor nature of the motor accident. However, the claimant had an underlying degenerative lower back, albeit asymptomatic, which made her more vulnerable to injury.
We are satisfied based on the nature of the motor accident and the onset and continuation of symptoms in the context of a person with a susceptible low back with pre-existing pathology, that there was an aggravation of disc pathology at the lower levels of the lumbar spine. We accept, given the claimant’s account, that the aggravation has continued, albeit in the context of an underlying degenerative spine which will also deteriorate on its own over time.

Treatment disputes

The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
(a) reasonable and necessary, and
(b) in relation to the injury.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[71] The MAC Act otherwise characterises the medical disputes as separate issues.
[71] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].

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.[72]
[72] [2018] NSWSC 1710 (Phillips) at [29].
The submissions at times confuse these issues and otherwise did not address the distinct treatment disputes, that is the dispute concerning past injections and the dispute for the proposed future surgery.
The past injections were undertaken to reduce the pain from the lower disc and an attempt to address the lower lumbar disc pathology, which was probably impinging, at times, on the lower nerve roots. Based on these and our earlier findings on injury, the need for the injections was caused by the motor accident. That finding recognises that there can be other non-related causes for the treatment, such as pre-existing pathology. The claimant satisfies the relevant test for causation provided the motor accident materially contributed to the need for the treatment.
In respect of our finding that the claimant has established that the motor accident caused the need for the proposed surgery we rely on:
-   The claimant’s pre-accident asymptomatic condition;
-   Our findings of injury;
-    Consistent complaints of back pain since the motor accident;
-   Complaints of radicular symptoms to a number of doctors including the findings by Medical Assessor Gibson;
-   Our acceptance that the motor accident has aggravated the underlying pathology such that the claimant now had ongoing back pain and radicular features, particularly in the L5/S1 dermatome;
-   The recommendation by the treating specialist and otherwise the appropriateness of spinal surgery.[73]
[73] This is discussed in more detail later in these reasons.
We accept that there is a material contribution between the motor accident and the need for the proposed surgery.

Reasonable and necessary

Ms Tomic 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[74], Grove J stated:[75]
“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.”
[74] [2003] NSWCA 52 (Clampett).
[75] 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.[76]
[76] 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.[77] 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.
[77] 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”.
The past injections are a low-cost treatment option recognised by medical experts as an appropriate treatment for low back pain in the context of disc pathology. Professor Sheridan noted some improvement after the earlier injections although it appears that the improvement was not longstanding.
The treatment in this matter was supported by treating specialist opinion and Dr Wallace articulated a sound medical basis of the need for the spinal injections. We agree with that opinion.
We are satisfied that the prior injections were both reasonable and necessary to treat the claimant’s low back condition.
Our findings that the proposed surgery is reasonable and necessary is based on a number of matters.
We are satisfied that the claimant has undergone extensive conservative treatment without appropriate resolution of symptoms.
We are satisfied that the claimant has ongoing radicular symptoms, particularly from the L5/S1 disc based on the claimant’s presentation to Medical Assessor Gibson. These symptoms are undoubtedly caused by the impinging disc at that level. That conclusion is supported by the updated MRI scan. In this respect, Medical Assessor Gibson found the claimant genuine in her presentation.
We accept that the nature of this surgery will probably alleviate the leg symptoms although it may not affect the back pain because the surgery will reduce the impingement on the nerve root. In that respect we accept on balance that the proposed surgery will alleviate leg symptoms and likely improve the claimant’s prospects. Our conclusion on this aspect acknowledges the potential, as outlined in the various articles referenced by the insurer, of an unsuccessful or deleterious outcome. It also acknowledges the difficulty with this surgery alleviating back pain over the longer term.
The proposed surgery is an accepted medical procedure for treating radicular symptoms and has been recommended on a number of occasions by the treating neurosurgeon.
We do not agree with the insurer’s submission that there are no radicular symptoms, nor do we accept its submission that the claimant is an unsuitable person for surgery. Our contrary view is based on the claimant’s presentation to Medical Assessor Gibson, her clinical findings and formed view that the claimant presented in a genuine fashion.
We accept that the proposed surgery recommended by Professor Sheridan is a medically acceptable treatment for the claimant’s circumstances.
We note that the surgery will be expensive. In that respect we accept that conservative treatment has not been successful in alleviating the symptoms and further conservative treatment has no long-term utility.
For these reasons, we conclude that the proposed surgery is both reasonable and necessary.

CONCLUSION

For these reasons the Medical Assessment Certificate dated 4 July 2022 is revoked. A replacement certificate is issued at the commencement of these Reasons.

[2023] NSWPICMP 180

4 May 2023