Vivolo v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Vivolo v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 544
CLAIMANT:	Alessio Vivolo
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	20 October 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; various treatment disputes; claimant involved in a motor accident on 9 July 2020 whilst riding a scooter and struck by insured vehicle; claimant re-examined by both Medical Assessors; inconsistencies noted on examination; claimant established that he sustained various injuries; delay in onset of symptoms to right shoulder and right hip incompatible with injury to those body parts; separate findings made on each of the nine treatments on the separate issues of causation and reasonable and necessary; Held – medical assessment revoked; various findings made on treatment disputes.
DETERMINATIONS MADE:	Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 12 March 2023 and issues a new certificate determining that: The following treatment and care: · left wrist arthroscopy; · L4/5 facet radio frequency injections (undertaken by Dr Mobbs on 11 October 2021); · bilateral L5 nerve root block (undertaken by Dr Mobbs on 11 October 2021); · proposed right acromio-clavicular joint (ACJ) guided injection (recommended by Dr Pant on 7 April 2022), and · right hip arthroscopy. IS REASONABLE AND NECESSARY in the circumstances. The Review Panel revokes the certificate dated 12 March 2023 and issues a new certificate determining that: The following treatment and care: · L4/5 total disc replacement surgery (recommended by Dr Mobbs on 9 February 2022); · left elbow osteotomy of the humerus without internal fixation (recommended by Dr Herald on 8 October 2021); · right shoulder arthroscopy; and · left ankle arthroscopy (recommended by Dr Rooney on 25 November 2021). IS NOT REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · L4/5 facet radio frequency injections (undertaken by Dr Mobbs on 11 October 2021); · Bilateral L5 nerve root block (undertaken by Dr Mobbs on 11 October 2021), and · left wrist arthroscopy; and · left ankle arthroscopy (recommended by Dr Rooney on 25 November 2021). RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. The following treatment and care: · left elbow osteotomy of the humerus without internal fixation (recommended by Dr Herald on 8 October 2021); · right shoulder arthroscopy; · proposed right acromio-clavicular joint (ACJ) guided injection (recommended by Dr Pant on 7 April 2022); · L4/5 total disc replacement surgery (recommended by Dr Mobbs on 9 February 2022), and. · right hip arthroscopy. DOES NOT RELATE TO THE INJURY CAUSED BY THE MOTOR ACCIDENT.

REASONS

BACKGROUND

Mr Alessio Vivolo (the claimant) suffered injury in a motor accident on 9 July 2020 (the motor accident). The accident occurred when the insured pulled out and struck the claimant who was riding a scooter.[1]
[1] Claimant’s bundle, p 23, p 32.
The insurer is liable to pay to Mr Vivolo any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether various treatment is reasonable and necessary in the circumstances and/or caused by the motor accident.
The various treatment disputes taken from the insurer’s dispute notices are:
·        L4/5 facet radio frequency injections (undertaken by Dr Mobbs on 11 October 2021);
·        bilateral L5 nerve root block (undertaken by Dr Mobbs on 11 October 2021);
·        left elbow osteotomy of the humerus without internal fixation (recommended by Dr Herald on 8 October 2021);
·        left ankle arthroscopy (recommended by Dr Rooney on 25 November 2021);
·        proposed right acromio-clavicular joint (ACJ) guided injection (recommended by Dr Pant on 7 April 2022);
·        L4/5 total disc replacement surgery (recommended by Dr Mobbs on 9 February 2022);
·        left wrist arthroscopy;
·        right hip arthroscopy, and
·        right shoulder arthroscopy.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters including whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 12 March 2023 (the medical assessment). Medical Assessor Cameron concluded that the various treatment was not reasonable and necessary and otherwise did not relate to the injuries caused by the motor accident.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by
Ms Vivolo within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI 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 review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] 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 proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
On 9 August 2023 the Panel requested the parties to confirm the precise treatment disputes before it. The parties responded as follows:
Insurer:
“We refer to the Review Panel Direction dated 9 August 2023. Please take this response as relating to matter numbers R-M10566504/23, R-M10566525/23,
R-M10566537/23 and R-M10566540/23.
It is the insurer’s position that the entirety of Assessor Cameron’s certificate dated 12 March 2023 is correct. Given that the review application was brought by the claimant we consider it is for them to advise what particular disputes that take issue with from Assessor Cameron’s certificate. We wrote to the claimant’s solicitors on 10 August 2023 in an endeavour to reach agreement but have not received a response. "
Claimant:
"We refer to the Review Panel Direction dated 9 August 2023. Please take this response as relating to matter numbers R-M10566504/23, R-M10566525/23,
R-M10566537/23 and R-M10566540/23.
It is the Claimant's position that the appeal panel should determine all disputes certified by Assessor Cameron in his Certificate dated 12 March 2023."
Given the absence of a proper response, we repeated our request in a further direction dated 15 August 2023.
The insurer then stated that the review was brought by the claimant, and it was for them to advise the disputes as it was of the view that the original Medical Assessor had correctly decided all disputes.
The parties’ responses are unhelpful, does not answer our direction and shows a lack of understanding that the review is a new assessment.
Given the absence of proper assistance from the parties, we have taken the medical disputes as those articulated by Medical Assessor Cameron.

STATUTORY PROVISIONS

Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with Schedule 2 of the MAI Act which defines a medical assessment matter as “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” (emphasis added).
Clause 2 (b) of Schedule 2 of the MAI Act was recently amended with the inclusion of the words “or to be provided” into the provision. That amendment followed a previous Review Panel decision rejecting the proposition that there was power under the MAI Act to determine a claim for future treatment.[8] Accordingly, there is a clear statutory intention of a power to make an order for future treatment due to the recent amendment.
[8] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
Given the subsequent legislative amendment, we reject the insurer’s submissions based on the decision of Obeid that that Panel has no power to determine a dispute on proposed treatment.

SUBMISSIONS

Claimant’s submissions dated 30 March 2023

These submissions were filed seeking leave to review the medical assessment. The claimant submitted that the Medical Assessor was first required to answer whether the treatment was “reasonable and necessary in the circumstances” and then required to answer if the treatment was caused by the motor accident.
The Medical Assessor erred because he did not consider the nature of the claimant’s injuries including that he sustained a fracture. It was further submitted that the Medical Assessor did not consider the radiology.
It was further submitted that the Medical Assessor did not properly consider the causation issue distinct from the reasonable and necessary issue.

Insurer’s submissions dated 16 February 2022[9]

[9] Insurer’s bundle, p 2.

These submissions related to the treatment provided by Dr Mobbs on 11 October 2021. The insurer referred to the medical evidence and submitted:
-      Reasonable and necessary meant that the request “must be directly related to the injuries sustained in the subject MVA”, aimed at helping the injured person get back to their usual activities, appropriate for this type of injury, provided by an appropriate qualified health professional and cost effective.
-      There was no evidence of radiculopathy from the lower spine and Dr Shetty found a normal neurological examination.
-      Dr Shetty recommended against radiofrequency ablation as this may contribute to a flare up of symptoms.
-      The treatment was not reasonable and necessary in the circumstances.

Insurer’s submissions dated 1 March 2022[10]
[10] Insurer’s bundle, p 93.

These submissions related to the proposed left elbow osteotomy. The insurer noted that the X-ray of the left elbow at hospital was reported as normal.
Both Dr Yalizis and Dr Herald diagnosed the claimant with lateral epicondylitis. Both treating surgeons do not believe that surgical intervention would provide symptomatic relief or functional benefit. Dr Yalizis and Dr Ibrahim both recommended platelet-rich plasma (PRP) injections.

Insurer’s submissions dated 29 April 2022[11]
[11] Insurer’s bundle, p 69.

These submissions related to the proposed left ankle arthroscopy and left elbow osteotomy.
The insurer referenced the decision of Obeid and submitted that the treatment dispute be dismissed.
The initial hospital records and the subsequent hospital records on 15 July 2020 did not reference injury to the left ankle or left elbow. The left ankle was not reported to a doctor as injured until two months after the motor accident.[12]
[12] Insurer’s bundle, p 88.
There was a delay in reported complaints, and it was unclear that the injuries were caused by the motor accident. Further the claimant had not undergone conservative treatment modalities and the surgeries are not reasonable and necessary “until alternate treatment options had been attempted and exhausted”. The insurer referred to the opinion of Dr Yalizis that the claimant should be treated non-operatively.

Insurer’s submissions dated 17 August 2022[13]
[13] Insurer’s bundle, p 158.

These submissions related to the proposed right shoulder injection.
The insurer submitted that the proposed treatment was not reasonable and necessary and not caused by the accident. It referred to the absence of contemporaneous complaint, such as hospital records and in the claim form, and noted that the first complaint of right shoulder symptoms was on 12 January 2021. At that time the MRI scan showed no evidence of acute right shoulder injury.

Insurer’s submissions dated 4 May 2022[14]
[14] Insurer’s bundle, p 1174.

These submissions related to the proposed L4/5 disc replacement surgery.
The insurer referenced the decision of Obeid and submitted that the treatment dispute be dismissed.
The insurer submitted that there are inconsistent opinions regarding treatment recommendations for the lumbar spine and referred to the opinion of Dr Shetty that the claimant undergo conservative treatment in the form of a multidisciplinary program.
The insurer also submitted that there was “insufficient evidence-based research to support the long-term efficacy of disc replacement in the treatment of lumbar disc degenerative disc disease.”
The insurer submitted that the proposed treatment was not reasonable and necessary and not related to the injuries sustained in the motor accident.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

There are no pre-accident medical records before the Panel.

Medical evidence

The emergency department discharge record referred to pain, swelling and reduced range of movement at the left wrist.[15] The X-ray showed a fracture of distal radius with intra-articular extension.[16]
[15] Claimant’s bundle, p 36.
[16] Claimant’s bundle, p 32.
A certificate dated 9 July 2020 certified that the motor accident caused a fractured wrist.[17]
[17] Claimant’s bundle, p 29.
An X-ray of the left wrist dated 15 July 2020 was unchanged from the previous X-ray. The left elbow X-ray was normal.[18] An X-ray of the thoracic spine dated 15 July 2020 was normal.[19] The discharge record at that time referred to persisting neck and chest pain and normal neurology over the upper limb. Examination also noted “pain over mid to lower thoracic on palpation, pain over both lower ribs” and “midline cervical spine tenderness”.[20]
[18] Claimant’s bundle, p 34.
[19] Claimant’s bundle, p 35.
[20] Claimant’s bundle, p 76.
The claim form completed by the claimant and dated 13 August 2020 referred to the motor accident causing injuries to the wrist, back and “left leg is pulling me”.[21]
[21] Claimant’s bundle, p 23.
An Allied Health recovery request dated 28 August 2020 referred to left wrist fracture and post-traumatic carpal tunnel syndrome.[22]
[22] Claimant’s bundle, p 46.
A CT scan of the lumbar spine dated 1 September 2020 showed mild spondylotic changes and a shallow broad left protrusion at L4/5 mildly displacing the traversing left L5 nerve root.[23]
[23] Claimant’s bundle, p 51.
A report of the physiotherapist noted a complaint of back pain radiating down the left leg at presentation on 4 September 2020.[24]
[24] Claimant’s bundle, p 61.
An Allied Health recovery request dated 11 September 2020 referred to back pain.[25]
[25] Claimant’s bundle, p 52.
The note of the general practitioner dated 18 September 2020 referred to the motor accident causing left wrist fracture, back pain, left hip pain greater then right hip pain, left knee and leg pain, right leg pain and left ankle pain.[26]
[26] Claimant’s bundle, p 348.
A certificate of capacity dated 21 September 2020 referred to the following injuries caused by the motor accident:[27]
“…cervical/interscapular left shoulder, left wrist fracture/intra-articular radial styloid, back pain, left hip, left knee, left ankle pain, phobia whilst driving”.
[27] Claimant’s bundle, p 58.
A report from the physiotherapist dated 24 September 2020 referred to treatment to the low back pain with reported radiating of left leg pain.[28]
[28] Insurer’s bundle, p 473.
In October 2020 the claimant commenced chiropractic care for the low back noting possible L5 nerve root irritation, left distal radius fracture and cervical pain.[29]
[29] Insurer’s bundle, p 475.
An Allied Health recovery request dated 29 October 2020 referred to lumbar spine strain at L5/S1 with possible L5 nerve root impingement and left fracture.[30]
[30] Claimant’s bundle, p 98.
The MRI scan of the left wrist and left shoulder dated 1 November 2020 showed delamination tear of the superior fibres of the subscapularis tendon, mild rotator tendinosis and truncation of the glenoid labrum without an acute tear. The scan of the left wrist showed:[31]
-      static ulnar subluxation;
-      features of de Quervains tenosynovitis;
-      small volar ganglia;
-      mild carpal sprain and possible subacute sprain grade 1 of VSLL;
-      non-specific lunate subchondral bone marrow oedema;
-      Type 2 lunate, and
-      features suggesting healed non-displaced intra-articular fracture of the distal radius.
[31] Claimant’s bundle, p 110.
A certificate of capacity dated 3 November 2020 describes similar injuries to those described in the certificate dated 21 September 2020.[32]
[32] Claimant’s bundle, p 106.
An MRI scan of the cervical spine dated 3 November 2020 showed minor spondylotic change with no significant central or foraminal stenosis.[33] The MRI scan of the lumbar spine showed dessication and early narrowing at the L4/5 disc and minor changes at L5/S1.
[33] Claimant’s bundle, p 107.
The certificate of capacity dated 2 December 2020 referred to “cervical disc lesion, left shoulder, left wrist fracture, referred pain down left upper limb, paraesthesia 1^st 2^nd 3^rd digits, back pain left leg pain, left knee pain, left ankle pain.”[34] The certificate dated 12 January 2021 was in similar form.[35]
[34] Claimant’s bundle, p 120.
[35] Claimant’s bundle, p 140.

An MRI scan of the left elbow dated 22 December 2020 showed minimal tendinosis of the extensor tendon and otherwise normal appearance.[36]
[36] Claimant’s bundle, p 127.
On 4 January 2021 the claimant underwent a left shoulder cortisone injection. The left wrist X-ray was basically normal showing a faint fracture line with possible intraarticular extension.[37]
[37] Claimant’s bundle, p 141.
An Allied Health report dated 15 January 2021 requested physiotherapy treatment for the lumbar spine and left wrist.[38] A request dated 17 February 2021 referred to treatment for the lumbar spine, left shoulder and left wrist.[39]
[38] Claimant’s bundle, p 142.
[39] Claimant’s bundle, p 163.
An MRI scan of the right shoulder dated 27 January 2021 referred to very minor subacromial bursal thickening, no rotator cuff tear and osteophytosis of the AC joint with moderate capsular thickening but without active capsulitis.[40]
[40] Claimant’s bundle, p 150.
A left hip MRI scan dated 16 March 2021 showed generalised thinning of the left hip joint.[41]
[41] Claimant’s bundle, p 179.
An MRI scan of the thoracic spine dated 31 May 2021 showed mild thoracic scoliosis, multilevel spondylotic changes, and disc osteophyte complexes at T4/5 and T5/6.[42]
[42] Claimant’s bundle, p 219.
An X-ray and ultrasound of the left shoulder dated 11 June 2021 showed subacromial bursitis, supraspinatus tendinosis and a possible partial intrasubstance tear.[43]
[43] Claimant’s bundle, p 28.
An X-ray and ultrasound of the left elbow dated 9 July 2021 showed a chronic deep surface intrasubstance tear. The scans of the left wrist were normal.[44]
[44] Claimant’s bundle, p 192.
A CT scan of the brain dated 15 July 2021 was normal.[45] An MRI scan of that day noted a clinical history of neck pain radiating to left arm with tingling of the fingers. The scan showed minimal cervical spondylosis with uncovertebral spurring at C3/4 causing mild stenosis with potential impingement of the C4 nerve roots.
[45] Claimant’s bundle, p 200.
A Bone scan dated 29 July 2021 showed subtle/questionable tracer uptake at L2/3 but otherwise the spine was within normal limits.[46]
[46] Claimant’s bundle, p 223.
Dr Michael Donnellan, neurosurgeon, noted a prior work history as a bricklayer. The doctor noted a history of the motor accident causing left wrist pain, headache, neck pain and low back pain.
Dr Donnellan opined that it was unclear what was the cause of the pain generator for the neck and shoulders noting that neck pain was the “worse symptom”.
On 6 August 2021 Dr Rooney noted continued issues with the left ankle.[47] A previous MRI scan showed a large osteochondral injury to the postero-medial aspect of the left talar dome measuring 17mm x 14mm x 9 mm with surrounding oedema indicating instability.[48]
[47] Claimant’s bundle, p 198.
[48] Claimant’s bundle, p 218.
The MRI scan of the left wrist dated 12 August 2021 was essentially normal.[49]
[49] Claimant’s bundle, p 217.
An MRI scan of the lumbar spine dated 31 August 2021 showed early disc dessication and bugling at L4/5 with partial effacement of the left lateral process.[50]
[50] Claimant’s bundle, p 206.
Dr Ralph Mobbs, neurosurgeon provided a report dated 30 September 2021.[51] The doctor noted that the back was the “most bothersome” and the “first to become problematic after his injury”. Other symptoms included hip and knee. Dr Mobbs recommended a series of treatments including bilateral L4/5 facet injections and nerve root blocks and referral to a pain specialist (Dr Shetty).
[51] Claimant’s bundle, p 213.
In a subsequent report Dr Mobbs noted the nerve block was to address leg symptoms whereas the facet joint was to address facet pain in the lower back and buttocks.[52]
[52] Claimant’s bundle, p 228.
In a report dated 9 February 2022 Dr Mobbs noted a good result with the L4/5 RF injections. The doctor recommended total disc replacement at the L4/5 disc.[53]
[53] Claimant’s bundle, p 250.
On 27 October 2021 Dr Rooney noted tenderness over the left ankle and recommended further scans.[54] On 2 November 2021 Dr Rooney recommended arthroscopy procedure of the left ankle for diagnostic purposes.[55]
[54] Claimant’s bundle, p 225.
[55] Claimant’s bundle, p 227.
Dr Shetty, pain specialist, provided a report dated 17 November 2021.[56] The doctor noted a development of widespread pain distribution across the body with prominent pins and needs in the feet.
[56] Claimant’s bundle, p 233.
Dr Shetty noted a “significant presence of central sensitisation of nociception” with the claimant having a “very strong biological focus”.
On 16 November 2021 Dr Matthew Yalizis, orthopaedic surgeon noted the claimant was a right-hand dominant concrete worker and had chronic left shoulder, elbow and wrist pain and recommend further scans.[57]
[57] Claimant’s bundle, p 244.
The MRI scan of the left wrist dated 29 November 2021 was essentially normal with minor cartilage wear over the scaphoid at the STT joint.[58]
[58] Claimant’s bundle, p 245.
On 30 November 2021 Dr Yalizis noted that the elbow MRI scan showed no evidence of any structural abnormality, and apart from minor scar tissue, the wrist MRI scan showed no major structural abnormalities.[59]
[59] Claimant’s bundle, p 258.
On examination Dr Yalizis noted tenderness over the lateral epicondyle. The doctor diagnosed lateral epicondylitis which should be treated nonoperatively by rehabilitation and PRP therapy and did not agree with the claimant’s request for operative intervention.
On 3 March 2022 Associate Professor Smith noted that the claimant had a “subluxing ECU and lax distal radioulnar joint suggesting a foveal TFC injury” and a positive scaphoid shift sign and lunate in the radial corner of the dorsal lunate suggesting scapholunate pathology.[60]
[60] Claimant’s bundle, p 255.
Associate Professor Smith suggested wrist arthroscopy, probable open triangular fibrocartilage complex stabilisation with ECU stabilisation and +/- arthroscopic scaphoid stabilisation.
On 15 March 2022 Dr Kalanie noted that the ultrasound ruled out an inguinal hernia and that the hip/groin symptoms were due to a right hip labral tear which was sustained when the claimant fell off the scooter during the motor accident. The doctor opined that the claimant required an arthroscopic right hip labral tear.[61] The right hip MRI scan dated 9 February 2022 showed fraying and tearing of the labrum.[62]
[61] Claimant’s bundle, p 256.
[62] Claimant’s bundle, p 324.
On 7 April 2022 Dr Sushil Pant recommended diagnostic AC injections for a small amount of subacromial bursitis.[63] The right shoulder MRI scan showed an intact rotator cuff.[64]
[63] Claimant’s bundle, p 282.
[64] Claimant’s bundle, p 283.
On 8 June 2022 Dr Mobbs again recommended total disc replacement at L4/5 opining that the claimant would “do well”.[65]
[65] Claimant’s bundle, p 297.

Dr Herald

Dr Jonathan Herald, orthopaedic surgeon, initially examined the claimant on 10 December 2020 noting the accident occurred in circumstances when the claimant fell “heavily on his side injuring his left shoulder, his left wrist, his neck and his back”.[66]
[66] Claimant’s bundle, p 123.
Dr Herald recommended a trial of left shoulder injections, a further left wrist X-ray and a course of anti-inflammatory medication noting neurological review for the neck and back.
On 2 February 2021 Dr Herald noted that the cortisone injection provided temporary relief for a few hours[67] and recommended left shoulder surgery. The doctor noted that the neck and back were the most painful areas and left that to the neurosurgeon.
[67] Claimant’s bundle, p 154.
The operation report dated 23 March 2021 noted upper half subscapularis tear with some tendinitis, subluxed long head of biceps tendon, biceps tendonitis.[68] On 1 April 2021 Dr Herald noted that the claimant was progressing well following surgery although complained of progressing wrist and elbow pain.[69]
[68] Claimant’s bundle, p 171.
[69] Claimant’s bundle, p 172.
On 10 June 2021 Dr Herald noted ongoing left shoulder, elbow and wrist pain and recommended nerve conduction studies.[70] On 7 July 2021 Dr Herald noted slow improvement in the left shoulder and recommended range of motion exercises.[71]
[70] Claimant’s bundle, p 189.
[71] Claimant’s bundle, p 190.
On 5 August 2021 Dr Herald noted positive carpal tunnel on the left wrist and bilateral pain and numbness in the arms.[72]
[72] Claimant’s bundle, p 197.
At surgery on 19 August 2021 Dr Herald noted a healed distal radius fracture, synovitis around the TFCC region with early chondral damage and early carpal tunnel syndrome.[73]
[73] Claimant’s bundle, p 202.
On 6 October 2021 Dr Herald noted ongoing severe pain complaints on the left elbow. The doctor noted the claimant wanted to proceed with left elbow surgery which “has no guarantees and may not give him a full recovery”.[74]
[74] Claimant’s bundle, p 211.
An MRI scan of the right hip dated 9 February 2022 noted chronic right hip pain and showed mild right hip joint effusion and moderate nonspecific synovitis which could be traumatic or due to an inflammatory arthropathy.[75]
[75] Claimant’s bundle, p 249.

Qualified evidence

Dr Clive Kenna was qualified by the insurer and provided a report dated 12 February 2021.[76] The doctor noted left wrist, neck and back pain with referral to left shoulder/arm symptoms.
[76] Claimant’s bundle, p 155.
Dr Richard Powell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 24 May 2022.[77] The doctor opined:
“Mr Vivolo has developed fairly widespread migratory musculoskeletal symptoms in the almost two years since the subject motor vehicle accident. His presentation today was unusual. There was evidence of abnormal illness behaviour. He was pain focused with a heightened pain response and there was some inconsistency in his clinical examination particularly in relation to observed spontaneous movements of the upper limbs and neurological examination of the lower limbs. His various treating specialists have recommended further surgery to address ongoing symptoms and functional limitations in the left wrist, right hip and left ankle.”
[77] Claimant’s bundle, p 269.
Dr Powell noted that it was “unusual for a low-speed motor scooter incident to result in separate pathologies”, he opined that the claimant sustained injuries to the cervical spine, left arm (shoulder, elbow and wrist), lumbar spine, right hip and left ankle.
In respect of the lumbar spine, Dr Powell found no instability or radiculopathy with evidence of abnormal illness behaviour. The doctor did not recommend lumbar surgery by way of total disc replacement as the widespread injuries had “failed to respond to extensive management programs including surgery to date”.
Dr Powell accepted the proposed left ankle surgery but did not think that surgery to the wrist, left elbow or right hip was reasonable and necessary.
Dr Yuk Kai Lee, orthopaedic surgeon, was qualified by the claimant and provided a report dated 28 November 2022.[78] The doctor opined that the motor accident caused a L4/5 disc injury, talar dome injury to the left ankle, rotator cuff injury to both shoulders, fractured left wrist with secondary carpal tunnel and lateral epicondylitis of both elbows.
[78] Claimant’s bundle, p 432.
The doctor recommended against a total disc replacement was “not an accepted operation”. He also opined that osteotomy of the left humerus was “not on the high priority list”.
Dr Lee recommended repair of the right labral tear which should be undertaken earlier before “degeneration sets in”. The doctor noted that left shoulder surgery was not successful and recommended against right shoulder surgery. He recommended a right AC injection as a diagnostic procedure.
Dr Lee otherwise noted that facet joint injections was not necessary as they are “not useful”.

RE-EXAMINATION

The Panel determined that Mr Vivolo be examined by the Medical Assessors on 10 October
2023.
The re-examination report is as follows:
“The Claimant, Mr Vivolo, attended for Panel Medical Assessment with Dr Geoffrey Stubbs and Dr Alan Home on 10 October 2023.
The history and examination was facilitated by an Italian interpreter, Ms Diastiegel, engaged by the Commission, National Accreditation Authority for Translators and Interpreters (NAATI) number XXXXX .
PAST MEDICAL HISTORY
Mr Vivolo denies any prior medical complaints of a musculoskeletal nature. He denies any other medical problems.
Mr Vivolo arrived in Australia, aged 29, in May 2019. He undertook brief periods of work as an air-conditioning installer, farmhand, coffee barrister and Uber driver.
At the time of the subject accident he was working as an Uber driver.
He had taken up Muay Thai boxing prior to the subject accident.
He was not taking any medications at the time of the subject accident. He recalls that he was fit and well.
DETAILS OF SUBJECT MOTOR VEHICLE ACCIDENT
Mr Vivolo states that on 9 July 2020 he was riding a 100cc motor-scooter and was overtaking a parked car on the left kerbside, when the driver of the car drove forward and out form the kerb, striking his motor-scooter on the left side and knocking him to the ground.
He recalls landing on his right side. He was wearing a helmet. There was no loss of consciousness.
He was able to rise without assistance. He recalls he purchased a coffee with the driver and reassured her that he was okay.
Subsequently, however, he was driven by the driver of the vehicle to the Accident and Emergency Department at Royal Prince Alfred Hospital. He recalls that he experienced early symptoms of pain in his left wrist, neck and back.
He confirms that left wrist X-rays revealed a minimally displaced intraarticular fracture of the left distal radius. This was treated in a plaster cast, which he recalls wearing for 40 days.
He re-attended the Hospital Emergency Department one week later, complaining of neck and upper back pain. He underwent further imaging, including CT scans of the cervical spine and plain radiographs of the chest and thoracic spine.
He recalls a progressive onset of further symptoms over the next month, including pain about his left shoulder and in his lower back.
He was sent for physical therapy, primarily directed toward his complaints of lower back pain.
Mr Vivolo subsequently underwent MRI scans of the cervical spine, performed on 30 November 2020, 16 July 2021 and 5 December 2022, demonstrating underlying cervical spondylosis, most prominent at C5/6.
Regarding his left wrist and shoulder complaints, he attended Dr Jonathon Herald. There was initial conservative management, including a period of physical therapy. He underwent a corticosteroid injection of the shoulder, with mild benefit.
Subsequently he underwent left shoulder surgery, performed on 23 March 2021, and consisting of a left shoulder arthroscopy, biceps tenodesis, subacromial decompression and rotator cuff debridement.
He told the Panel that he was advised that his left collar bone had been removed.
The panel found that his left clavicle was found to be intact on later clinical examination.
Mr Vivolo was later diagnosed with lateral epicondylitis at the left elbow. Dr Herald discussed surgical management but this did not proceed. There are no current plans for surgical management of the left elbow.
Regarding his left wrist complaint, he underwent open carpal tunnel decompression and left wrist arthroscopy, performed by Dr Jonathon Herald on 19 August 2021. He recalls no significant symptom improvement.
Mr Vivolo later attended Professor Nicholas Smith, orthopaedic surgeon, who performed an ECU stabilisation on or about 3 November 2022. Mr Vivolo recalls this provided some benefit in relation to his left wrist pain.
He recalls that he developed right shoulder pain progressively, at a later date. He cannot recall the precise timing of onset.
He underwent MRI scans of the right shoulder, performed in January 2021, six months post-accident, which demonstrated mild subacromial bursal thickening and AC joint arthropathy but no cuff tear.
In relation to his low back condition, he underwent CT imaging on 1 September 2020, which demonstrated L4/5 disc pathology. Back and left leg pain developed by 4 September 2020. There was subsequent physical and chiropractic treatment, in late 2020 and throughout 2021.
The thoracic spine was imaged in May 2021. MRI imaging of the lumbar spine was performed in August 2021.
He confirms that he attended Dr Ralph Mobbs, neurosurgeon, in September 2021. He underwent further imaging of the spine.
He confirms that he underwent bilateral radiofrequency procedures and bilateral L5 nerve root blocks, performed by Dr Mobbs on or about mid-October 2021. Mr Vivolo recalls transient symptom benefit for several weeks after each injection.
He confirms that he attended a pain specialist, Dr Shetty, in November 2021. There was a discussion about numerous treatment options, however, no treatment ensued.
He also confirms review of his upper limb complaints by Dr Yalizis, orthopaedic surgeon in November 2021.
He confirms that Dr Yalizis diagnosed lateral epicondylitis but recommended against surgical management.
In February 2022, Dr Mobbs recommended a total disc replacement at L4/5.
Mr Vivolo states he developed gradual onset of right hip pain, approximately 12 months after the subject accident. He underwent MRI scans of the right hip, performed on 9 February 2022.
Mr Vivolo attended Dr Kalanie in March 2022. Dr Kalanie recommended right hip arthroscopy. This did not proceed, and that proposed treatment is not the subject of this assessment.
At his left ankle, Mr Vivolo recalls that pain that commenced at the time of the accident. He said he underwent MRI scans of the left ankle in May 2021. These identified an osteochondral lesion in the talar dome.
He attended Dr John Rooney, who recommended surgical management in the form of ankle arthroscopy.
He attended Dr Sushil Pant, orthopaedic surgeon on 7 April 2022. He underwent a right shoulder diagnostic AC Joint injection, which provided transient symptom benefit for several hours, but no durable benefit.
There has been no subsequent treatment.
He is currently taking Nuromol and Panadol forte analgesia. There is no current physical therapy being undertaken.
CURRENT SYMPTOMS
Mr Vivolo reports current symptoms of a constant neck pain, average intensity 5/10, more severe on the left side. He said neck motion is restricted.
He describes intermittent left shoulder pain, average intensity 5-6/10, eased with activity but increased with rest. He describes difficulty raising either arm above the horizontal.
There is similar pain at the right shoulder, with Mr Vivolo estimating also a 5-6/10 in severity.
He says there is occasional pain at the posterior aspect of the left elbow. He has regained a good range of motion of the joint.
At the left wrist and describes constant pain, at 7-8/10, increasing with loading. He said he undertakes very little lifting. He says that he would not lift a 2kg litre of milk with either hand.
Mr Vivolo reports constant low back pain of average intensity 9/10, worse on the left side. This is exacerbated by coughing where the pain is felt in the thoracolumbar junction, as indicated.
There is intermittent paraesthesia in the soles.
He describes constant left ankle pain, average intensity 7-8/10.
He reports a sitting tolerance of up to 40 minutes. He has not driven over the past 2 years due to concerns about aggravation of his injuries. He is able to stand for 15 minutes before complaining of general weakness and fatigue. He says that his legs become numb when he walks for any distance. He avoids stair climbing.
SOCIAL HISTORY
He lives in a shared house, in a rental apartment in Botany Road, Alexandria. He does not engage in domestic chores.
Mr Vivolo says he spends most of his day at home. He is rarely leaving the house.
He is independent for activities of self-care.

PHYSICAL EXAMINATION

Mr Vivolo presented to the assessment wearing a rigid cervical spine collar, a left wrist brace and a flexible left elbow orthosis. He was encouraged to remove these before the assessment.

The Panel noted that formal examination was difficult due to apparent voluntary inhibition of motion. The range of active motion of the cervical spine was much greater when observed independently than during formal assessment.
During formal assessment the claimant demonstrated neck rotation of only 20-30° to each side. By comparison, when observed at other times he was noted to turn his neck freely to almost full range. When this inconsistency was brought to his attention, he told the Panel that he would limit motion due to concerns about pain.
Similarly, examination of the lumbar spine demonstrated inconsistent range of motion between formal and informal examination. Pain was elicited with simulated lumbar rotation.
Straight leg raising was 40° when seated on the couch, but there was no active motion when supine.
Neurological examination of the upper and lower extremities was confounded by widespread give-way weakness.
The circumference of the upper limbs were symmetrical, measured at 32cm at 10cm above the elbow and 28cm at equidistance below the elbows.
Active motion at the left shoulder was near normal when distracted, with Mr Vivolo able to reach behind his head to point to his upper shoulders, and freely behind his back on each side.
During formal examination the claimant declined to attempt active rotation with the elbows by his side. Again, Mr Vivolo complained he was concerned about burning pain in his spine, causing him to limit shoulder motion.
Later in the examination Mr Vivolo demonstrated a clicking noise with protraction and rotation of the right scapula. This was entirely voluntary, demonstrated to show that there was an injury to his shoulder. There was no associated pain behaviour. Voluntary protraction of the shoulder blade is often seen in people with hypermobile joints. When tested for injury to the nerve to serratus anterior there was no evidence of involuntary winging of the scapula.
The panel found no evidence of an injury that would cause this phenomenon.
At examination there was no objective evidence of restricted spinal motion and it was apparent there was a near full range of motion at both shoulders and at the left wrist, when observed during the entire assessment.
At examination of the left elbow, there was no tenderness elicited to palpation at the lateral epicondyle. There was mild tenderness noted over the radial head. There was a full range of active elbow joint motion in all planes.
The circumference of the thighs were symmetrical at 49.5cm, and the calves were symmetrical at 40cm.
At the left ankle there was no deformity or effusion. There was a good range of motion demonstrated of the left ankle. Mr Vivolo demonstrated a capacity to stand independently on each foot, with encouragement. He was also able to walk on his toes and heels.
TREATMENT: CAUSATION

The Panel finds that Mr Vivolo did suffer a motor-scooter accident, from which he suffered an intraarticular fracture of the distal radius at the left wrist. There was subsequent treatment, including a carpal tunnel release and treatment to address distal radio-ulnar and ECU instability (Professor Smith).

It appears from his history that this operation has been successful in easing his complaints of left wrist pain.
His left wrist motion is almost full in all planes.
The Panel find that on the balance of probabilities, Mr Vivolo’s injuries of the cervical spine and lumbar spine arose from the subject motor vehicle accident and are causally related to the mechanism of the accident.
Low back pain is documented within a month or two of the accident. We accept that the various injections are causally related to the motor accident noting the continuity of chronic back symptoms caused by the motor accident.
The subsequent complaint of pain of the left elbow was casually related, given the mechanism of the subject accident.
However, there is no finding of a diagnosis of lateral epicondylitis at the left elbow, based upon the clinical findings at this assessment. Therefore, the panel has found that the condition has resolved.
The claimant complained of late onset right shoulder pain. There is no evidence of injury to the right shoulder. He can voluntarily produce a clicking sensation during active protraction of the scapula. This is not an injury.
The early medical documentation details left wrist, neck and low back pain, with pain referred from the back to the left leg.
A detailed review of persisting musculoskeletal complaints and related clinical findings is set out by James Gulotta, physiotherapist on 21 December 2020.
The same complaints are documented by Dr Herald at an initial assessment dated 10 December 2020.
The Panel anticipates that this would be sufficient time to enable the claimant to appreciate any related injuries.
The documented complaints are confined to the left shoulder, left wrist, left elbow and lumbar spine.
The Panel finds that the history and medical evidence is not consistent with the causal relationship between the Claimant’s complaints of right hip pain and the subject accident due to the lengthy delay between the accident and the onset of symptoms.
The Panel accepts that there is a causal relationship between the finding of an osteochondral lesion of the left ankle in the subject accident, noting the complaint of documented ankle pain in September 2020. It is medically plausible that the left ankle condition was overlooked because of the other injuries. There can be progression of the osteochondral lesion after an acute injury. The fall from the bike was sufficient to cause an osteochondral ankle injury.
The Panel notes that MRI scan of the left ankle was first performed in May 2021.
The panel finds that the claimant presents with unusual physical symptoms that have changed over time.
The claimant was convinced that Dr Herald removed his left clavicle, resulting in altered body balance and a scoliosis. This belief is further detailed in a health complaint documented in January 2022. However, the panel finds that the left clavicle is intact and there is no abnormal scoliosis evident.
The panel notes that physical complaints have now progressed to involve the right shoulder and right hip. The history provided by the claimant to the Medical Assessors was that right shoulder and right hip pain did not develop for many months after the motor accident. It is not medically plausible that a delay in symptoms of such duration is causally related to the motor accident. Accordingly, we do not accept that the proposed right shoulder injection and arthroscopy and right hip arthroscopy are causally related to the motor accident.
The claimant presents with a number of non-organic clinical signs that reflect a prominent behavioural component to the presentation of disability.
Illness behaviour is also documented by Dr Powell in May 2022.
TREATMENT: REASONABLE AND NECESSARY
The proposed treatment has been considered in the context of our reasons set out later concerning the factors to consider for the issue of reasonable and necessary.
L4/5 radio-frequency injections provided by Dr Mobbs on 11 October 2021
The Panel finds the diagnostic injections (nerve root sleeve blocks) were reasonable and necessary, noting the complaint of chronic back pain of thirteen months duration at that time.
The Panel finds that bilateral L5 nerve root blocks provided by Dr Mobbs were reasonable and necessary, as a diagnostic procedure.
The Panel accepts that radiofrequency procedures were reasonable and necessary as recommended by the treating neurosurgeon but would have advised preceding diagnostic blocks before that as undertaken. In any event, both sets of injections are reasonable and necessary.
The claimant recalls a period of reduced pain for several weeks or a month. On that basis, repeat procedures are not recommended.
Left elbow osteotomy of the humerus without internal fixation (recommended by Dr Herald on 8 October 2021)
The panel finds that there is no medical indication for a left elbow osteotomy of the humerus without internal fixation.
At the Panel assessment, there is no joint effusion, the range of active left elbow joint motion is full, there is no tenderness on direct palpation of the lateral epicondyle or common extensor tendon and provocation tests for extensor tendinopathy are negative.
The Panel notes and agrees with the opinion expressed by Dr Yalizis that there is no indication for this surgery, that surgery of this nature would not improve Mr Vivolo’s outlook. Since the examination of Dr Yalizis, the clinical finding of localised tenderness at the lateral epicondyle has resolved.
Left ankle arthroscopy
The Panel notes that there is an osteochondral lesion at the left ankle. The Panel has accepted that there was a left ankle injury caused by the motor accident.
The panel is of the view that in some circumstances the proposed treatment recommended by Dr Rooney in November 2021 would be considered reasonable and necessary.
However, based upon the current clinical findings, the Panel do not find that the proposed treatment is reasonable and necessary.
Specifically, on examination of the left ankle, The Panel found a near normal range of active motion when distracted.
The Panel found no evidence of joint effusion at the left ankle.
The calf circumferences are symmetrical, consistent with an even gait pattern.
Further, the claimant presents with considerable clinical signs of behavioural distress confounding the assessment of physical disability. In these circumstances, any recommendation for surgical treatment without objective clinical findings of physical disability should be considered with caution.
In the absence of objective clinical signs of ongoing disability related to the underlying pathology, the Panel does not accept that the proposed arthroscopic treatment is reasonable and necessary.
L4/5 total disc replacement surgery, recommended by Dr Mobbs
The Panel do not accept that the proposed treatment is reasonable and necessary.
The panel do not recommend further invasive treatment of the lumbar spine condition.
The Panel finds that there is a prominent behavioural component to the presentation disability such that we would recommend a conservative approach to treatment, particularly in considering the utility of surgery that will alter the anatomy of the spine.
The Panel did not find objective clinical signs of radiculopathy at examination.
To the extent that the Claimant presents with restricted spinal motion, the Panel finds that the clinical presentation is inconsistent.
There is no evidence of spinal instability on previous imaging.
The Panel finds that whilst the Claimant reported a temporary response to spinal injections, this is insufficient reason to recommend the proposed spinal fusion surgery procedure.
Right acromioclavicular joint injection
The Panel accepts that, noting the complaint of local right shoulder pain, the treatment of a diagnostic right acromioclavicular joint injection was reasonable and necessary as a diagnostic measure.
Proposed right shoulder arthroscopy
The range of active shoulder motion is within normal limits when assessed during the examination, despite marked limitation of motion during formal examination. There is no local wasting or weakness identified at examination.
Based upon the objective clinical findings at this assessment, The Panel would not recommend further invasive treatment directed toward Mr Vivolo’s right shoulder condition.
Left wrist arthroscopy
The arthroscopy performed by Professor Smith was reasonable and necessary and satisfies every aspect of the criteria set out later in these reasons.
Right hip arthroscopy
The Panel finds that the history and medical evidence is not consistent with the causal relationship between the Claimant’s complaints of right hip labral tear and the subject accident due to the long delay between the accident and the onset of right hip symptoms.
The proposed treatment of right hip arthroscopy satisfies the criteria for reasonable and necessary treatment.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[79] and Insurance Australia Ltd v Marsh.[80]
[79] [2021] NSWCA 287 at [40], [41] and [45].
[80] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extremely detailed examination report of the Medical Assessors and adds the following brief further reasons.
The Panel observes that there is no basis for the claimant’s submission that the Medical Assessor was first required to answer whether the treatment was “reasonable and necessary in the circumstances” and then required to answer if the treatment was caused by the motor accident.
The issues are discrete and the suggestion that one issue must be determined before the other does not appear from the text or context of the legislation. The claimant otherwise did not refer to any portion of the legislation or any authority to support this submission.

Injuries

There is no contemporaneous complaint of injury to the right shoulder and the right hip and the first mention in January 2021, some six months after the motor accident. An absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd;[81] AAI Ltd v McGiffen.[82]
[81] [2021] NSWSC 548 (Norrington).
[82] [2016] NSWCA 229 at [64]-[66].
The claimant did not assert that he injured the right shoulder and right hip in the claim form. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[83] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[83] [2014] NSWSC 888 at [31]-[32].
Mr Vivolo otherwise agreed with the Medical Assessors that his right shoulder pain developed later consistent with the absence of contemporaneous record of complaint. Accordingly, in the absence of any right shoulder complaint symptoms (let alone recorded complaint), the claimant has not established any right shoulder injury. Mr Vivolo gave a similar history of significant delayed onset in right hip pain. Again, that delay, in the order of 12 months is inconsistent with the motor accident causing right hip injury.

Reasonable and necessary in the circumstances

Ms Vivolo 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,[84] Grove J stated:[85]
“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.”
[84] [2003] NSWCA 52 (Clampett).
[85] 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.[86]
[86] 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.[87] 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.
[87] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
Some of the proposed treatments are reasonable and necessary although we do not accept that they are caused by the motor accident. The claimant has a labral tear in the right hip which requires surgery which would prevent further deterioration. However, that conclusion does not mean thar the labral tear was caused by the motor accident.
Similarly, a proposed right ACJ guided injection is an acceptable medical procedure for diagnostic purposes at relatively low cost. However, that conclusion is not inconsistent with our previous conclusion that the motor accident did not cause right shoulder injury.
The Medical Assessors otherwise do not support the proposed disc replacement surgery. That procedure is not supported by Dr Lee and Dr Powell. The procedure is otherwise contraindicated in light of the Panel findings of inconsistency in presentation.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[88] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[88] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[89] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[89] [2018] NSWSC 1710 at [29] (Phillips).

CONCLUSION

For these reasons, the Panel revokes the certificates issued by Medical Assessor Cameron. The new certificates are attached at the commencement of these Reasons.

[2023] NSWPICMP 544

20 October 2023