Wall v QBE Insurance (Australia) Limited
[2023] NSWPICMP 357
•25 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Wall v QBE Insurance (Australia) Limited [2023] NSWPICMP 357 |
| CLAIMANT: | Samantha Wall |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 25 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; injury on 25 April 2017 from rear end collision; treatment and care dispute; observations of inadequacies of questions such as references to “any” treatment; various opinions observed that claimant’s perception of pain was due to psychiatric condition; Panel satisfied that claimant had a genuine neck pain; motor accident aggravated underlying degenerative condition; claimant probably developed adhesive capsulitis in the right shoulder due to grossly restricted neck movements; Held – original assessment revoked; questions answered as framed. |
| 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 Kenna dated 19 September 2022 and issues a replacement certificate as follows: Whether the surgery to the spine as proposed by Dr Yanni Sergides on 31 July 2017 from the date of the Medical Assessment Services (MAS) assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident. 1. Yes Whether the surgery to the spine as proposed by Dr Yanni Sergides on 31 July 2017 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.2. No Whether any chiropractic treatments in relation to all physical injuries as proposed by Yes Whether any chiropractic treatments in relation to all physical injuries as proposed by No Whether a one-off X-ray and MRI scans in relation to the right shoulder as proposed by Yes Whether a one-off X-ray and MRI scans in relation to the right shoulder as proposed by Yes Whether any acupuncture treatments in relation to all physical injuries as proposed by Yes Whether any acupuncture treatments in relation to all physical injuries as proposed by No Whether all physical injuries give a rise to a need for domestic assistance task from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident. 9. Yes Whether any hours per week of domestic assistance task in relation to all physical injuries from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.10. Yes |
REASONS
BACKGROUND
Ms Samantha Wall (the claimant) was injured in a motor accident on 25 April 2017. Ms Wall was stationary in a line of vehicles at traffic lights when her vehicle was rear-ended by the insured vehicle causing Ms Wall’s vehicle to impact into the vehicle in front.[1]
[1] Claimant’s bundle, p 15.
The insurer is liable to pay Ms Wall any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
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”, “whether any such treatment relates to the injury caused by the motor accident” and “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
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.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[2] Section 60 of the MAC Act.
The medical disputes before the Panel contained in the referral are:[3]
[3] Medical referral dated 8 September 2022.
“1. Whether the surgery to the spine as proposed by Dr Yanni Sergides on
31 July 2017 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.2. Whether the surgery to the spine as proposed by Dr Yanni Sergides on
31 July 2017 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.3. Whether any chiropractic treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 7 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
4. Whether any chiropractic treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 7 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.
5. Whether a one-off X-ray & MRI scans in relation to the Right shoulder as proposed by Dr Jeffery S Hughes on 18 January 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
6. Whether a one-off X-ray & MRI scans in relation to the Right shoulder as proposed by Dr Jeffery S Hughes on 18 January 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.
7. Whether any acupuncture treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 26 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
8. Whether any acupuncture treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 26 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.
9. Whether all physical injuries give a rise to a need for domestic assistance task from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
10. Whether any hours per week of domestic assistance task in relation to all physical injuries from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.”
We observe that the medical disputes are worded using “any hours” (Q 10) or “whether any” specific treatment (Q 3, 4, 7 and 8) and do not ask specific questions concerning the extent of the need.
We also note that some of the “disputes” have combined the issues of “reasonable and necessary” and causation in questions 2, 4, 6, 8 and 10 whilst otherwise asking the causation question only in questions 1, 3, 5, 7 and 9. This drafting shows a misunderstanding of separate issues.
Other Review Panels have raised that these type of “medical disputes”, using that term in a neutral manner, are probably of no utility as the Panel considers the question of future treatment based on the balance of probabilities. Our role is not the same as a finding of a future loss in accordance with the principles discussed in Malec v Hutton[4] when a Court assesses damages, or a Member of the Personal Injury Commission (Commission) expresses an advisory opinion based on a future contingency. Medical Assessors (and Review Panels) are making a different determination which is otherwise clear from the questions that have been framed for our consideration.
[4] [1990] HCA 20 per Deane, Gaudron and McHugh JJ at [7].
Questions 9 and 10 have otherwise limited the issue of domestic assistance to “physical injuries” in circumstances where the claimant has an undoubted psychological condition affecting that need.
It is over six years since the motor accident and the parties are awaiting responses for questions drafted by either one or both legal representatives which have doubtful utility to the determination of the overall damages assessment.
We will answer the questions as referred despite the deficiencies in which they are framed.
Medical assessment
The medical disputes were referred to Medical Assessor Kenna who issued a Medical Assessment Certificate dated 19 September 2022 (the medical assessment).
The Medical Assessor appears to have answered each of the questions “No”.
THE REVIEW
The application for referral of the medical assessment 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.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The insurer eventually complied with the direction.
STATUTORY PROVISIONS/GUIDELINES
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[10]
[10] Clause 1.2 of the Guidelines.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
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].
MATERIAL BEFORE THE REVIEW PANEL
The parties filed extensive bundles of documents.
Pre-accident records
Extensive prior hospital records refer to unrelated health conditions.[13]
[13] Claimants bundle, pp 31 – 222.
A clinical note referred to neck injury in October 2001 and whiplash in 1994.[14]
[14] Claimant’s bundle, p 1777.
A 2012 cervical spine X-ray was normal save as to a reference to a longer C7 left transverse process which is of no real consequence.[15]
[15] Claimant’s bundle, p 1808.
In August 2013 the general practitioner (GP) noted a sore neck following the claimant avoiding an accident the previous day.[16]
[16] Insurer’s bundle, part 3, p 18.
Medical treatment following the motor accident
The ambulance record noted neck, headache and shoulder pain.[17] The ambulance officer noted that the claimant was alert, speaking in sentences with nil respiratory distress. The claimant gave a history that she was stopped in traffic when a truck rear-ended her at low speed pushing her into the car in front. The claimant denied hitting her head, denied loss of consciousness, airbags were not deployed and there was minor damage to the vehicle.
[17] Claimant’s bundle, p 231.
The claimant stated that she felt her head go “forward and then back” with pain reported as 4/10 in the central neck region.
The hospital record noted pain in the neck and right shoulder with reported paraesthesia in the right arm with no weakness.[18] The X-ray of the right shoulder and cervical spine taken at hospital showed no fracture or dislocation.[19]
[18] Claimant’s bundle, p 223.
[19] Claimant’s bundle, p 242.
On examination there was no evidence of head injury, mild midline cervical spine tenderness and mild generalised tenderness in the right shoulder.[20]
[20] Insurer’s bundle, p 31.
The CT scan of the brain was normal.[21]
[21] Claimant’s bundle, p 302.
The clinical note of Dr Farbenblum dated 28 April 2017 referred to the motor accident causing left sided headache and pain in the neck and shoulders with tingling down the left arm. The doctor noted that “since then she has been lethargic and has a dull headache nausea neck and lower back pain” and “yesterday had tingling in all her limbs and slight visual disturbance”. [22]
[22] Insurer’s bundle, p 33.
A cervical MRI scan dated 8 May 2017 showed multilevel degenerative changes specifically at C4/5 and C5/6 potentially impinging the right C5 and C6 nerve roots.[23]
[23] Claimant’s bundle, p 303.
Dr Yanni Sergides, neurosurgeon, provided a report dated 7 June 2017.[24] The doctor noted a flexion extension injury from the motor accident with right sided neck pain radiating to the right shoulder and arm. Neurological examination was normal.
[24] Claimant’s bundle, p 298.
Dr Sergides noted the MRI scan showed right sided disc prolapse at C4/5 and C5/6 compressing the existing nerve roots which partly explained the symptoms.
On 19 July 2017 Dr Sergides opined that surgery was likely to improve symptoms in the right arm but improvement in the neck and headaches was “less predictable”.[25]
[25] Claimant’s bundle, p 994.
A cervical spine X-ray dated 31 July 2017 showed multilevel cervical spondylotic changes in the lower cervical spine.[26] The CT scan of the same date also showed cervical spondylotic changes in the lower cervical spine with advanced right sided foraminal stenosis potentially impinging the C5, C6 and C7 nerve roots.
[26] Claimant’s bundle, p 20.
In August 2017 Dr Farey noted ongoing neck pain and right upper limb in the C6 distribution. The doctor noted failure to non-operative treatment and recommended anterior decompression and fusion at C4/5 and C5/6.
The hospital note dated 27 October 2017 referred to unresolved pain in the right arm and neck since the motor accident which had profoundly affected the claimant’s ability to undertake domestic tasks.[27] Other symptoms included right side facial neuralgia. Medications included Targin and Oxycodone.
[27] Claimant’s bundle, p 248.
In a short report dated 28 November 2017 Dr Ian Farey, orthopaedic surgeon recommended anterior decompression and fusion at C4/5 and C5/6.[28]
[28] Claimant’s bundle, p 341.
In December 2017 Dr Paul Wrigley, pain management specialist, noted that the claimant was “too hypersensitive for a detailed physical exam” and suggested a trial of interforaminal injections at C4/5 and C5/6. Ms Wall was pursuing physiotherapy.[29]
[29] Claimant’s bundle, p 369.
In a letter to QBE dated 1 December 2017, Dr Wrigley noted a decision had been made “not to pursue surgery”. The doctor recommended an approach at improving pain management skills.[30]
[30] Claimant’s bundle, p 663.
Injections into the right C4/5 and C5/6 foramina were undertaken on 2 February 2018.[31]
[31] Claimant’s bundle, p 387.
In March 2018 Dr Wrigley noted that the claimant was having ongoing psychiatric review and physiotherapy.[32]
[32] Claimant’s bundle, p 397.
Physiotherapy notes in April 2018 noted worsening pain. The claimant was noted to be performing exercises and desensitisation twice a day.[33]
[33] Claimant’s bundle, p 410.
In April 2018 Dr Farey noted constant neck pain radiating to the right arm with the claimant presenting with significant disability.[34] The doctor noted no evidence of weakness or reflex abnormality, however noted impaired sensation in the right ring and little fingers. Global restriction of the right shoulder was consistent with adhesive capsulitis.
[34] Claimant’s bundle, p 915.
Dr Farey opined that most of the problems were arising from the C5/6 level which was causing pain radiating to the dorsum of the wrist. The doctor recommended assessment of the adhesive capsulitis before management of the cervical spine problems.
In May 2018 the GP referred the claimant to Dr Jeffery Hughes noting a history of right shoulder adhesive capsulitis of six months duration.[35]
[35] Claimant’s bundle, p 885.
In August 2018 Dr Wrigley noted that the claimant was struggling with consistent ongoing pain complicated with the home situation. The doctor recommended maintaining Targin at current dosage, ceasing oxycodone immediately, further corticosteroid injections at C4/5 and C5/6 and ongoing psychological consultations and physiotherapy.[36]
[36] Claimant’s bundle, p 423.
Further cervical spine injections were undertaken in August 2018 noting that previous injections in 2017 had good effect.[37]
[37] Claimant’s bundle, p 439.
In August 2018, Mr Nicholas, psychologist, noted that the claimant’s pain was chronic and “terrible”, the domestic situation was complicated by the husband’s illness and loss of family home. The claimant was performing restricted duties at work.
Dr Mary-Anne Friend, psychiatrist, provided a report dated 29 August 2018.[38] The doctor opined that the claimant was suffering from post-traumatic stress disorder and was at a high risk of developing a secondary major depressive disorder. The doctor recommended commencement of Endep and referral to the traumatic stress clinic at the University of New South Wales.
[38] Claimant’s bundle, p 1,055.
In October 2018 Dr Wrigley noted ongoing psychological treatment. Neck pain had improved following injections although right shoulder pain did not improve. The notes refer to continual falls because the claimant does not look down.
On 18 January 2019 Dr Hughes noted obvious wasting of the right deltoid. Examination was incomplete due to marked pain. The doctor noted documented right shoulder injury following the motor accident and recommended an MRI scan and X-ray of the right shoulder to ascertain whether the accident caused any pathology. [39]
[39] Claimant’s bundle, p 895.
In January 2019 Dr Wrigley noted the situation was unchanged with the claimant seeing
Dr Farey for the spine, Dr Hughes for the shoulder and engaging in a research program for the post-traumatic stress disorder at the University of New South Wales.[40][40] Claimant’s bundle, p 450.
A rehabilitation progress report dated 7 March 2019[41] noted that the claimant was not attending free treatment. Physiotherapy, osteopathic and acupuncture treatment provided little positive outcome and the physiotherapy particularly resulted in significant aggravation of symptoms. As a result, the treatment the time was based upon medication and rest.
[41] Insurer’s bundle, p 49.
The report noted the claimant’s participation in domestic tasks have been inconsistent and she found the act of looking down aggravated her symptoms. It was noted that the claimant presented with little active movement at the neck and right shoulder, consistent with the exercise physiologist progress report and that the claimant was fearful of any movement in these areas.
In December 2019 the claimant fell down steps at home striking her head with reported loss of consciousness.[42] The CT scan of the brain and cervical spine dated 4 December 2019 showed no acute pathology.[43]
[42] Claimant’s bundle, p 478.
[43] Claimant’s bundle, p 470.
Dr Friend provided a further report dated 15 July 2020.[44] The doctor noted the claimant presented with a recurrence of a major depressive disorder on a background of post-traumatic stress disorder which had not fully resolved. The doctor noted that this was not surprising given the significant stressors of moving house, parents’ and husband’s illness and eldest son’s deteriorating mental health.
[44] Claimant’s bundle, p 1,081.
The doctor noted that the claimant had felt overwhelmed and was drinking increasing amounts of alcohol to cope.
An assessment in October 2020 noted the claimant was consuming a dangerous mix of alcohol and prescription medication and engaging in domestic abuse of her family.[45]
[45] Claimant’s bundle, p 501.
In 2022 the claimant was diagnosed with lobular cancer of the left breast.[46]
[46] Claimant’s bundle, p 1389.
Claim form
The claim form dated 31 July 2017 noted the motor accident causing injuries to the right shoulder, cervical spine, facial pain, numbness in right leg and seatbelt bruises.[47] The claimant stated that her previous injury or illness was a previous concussion “25 years ago”.
[47] Claimant’s bundle, p 16.
Qualified opinions
Dr Paul Carney, neurosurgeon, was qualified by the insurer and provided a report dated
31 October 2017.[48] The doctor found no weakness or reflex loss in any limb. Sensory testing provided a “rapidly expanding area of pinprick loss which comprehended the whole of the right arm” which was “almost certainly entirely non-organic”.[48] Claimant’s bundle, p 332.
Dr Carney opined that the history of concussion and retrograde amnesia was inconsistent with the hospital notes of discharge on the same day. The doctor accepted that the claimant had a neck strain which was complicated by psychological factors.
Dr Carney accepted that this was a “significant strain” and the aggravation had not ceased. Ongoing treatment should include pain clinic management and psychological assessment. Any surgery was unlikely to be effective and “may even worsen the problem”. The doctor recommended constitutional treatment including pain clinic options and continuing meditation.
Dr Carney provided a further report dated 10 May 2019.[49] The doctor then noted a complaint of pain “everywhere”.
[49] Insurer’s bundle, p 20.
The doctor reviewed various materials including the hospital notes which reported that the claimant mobilised independently and comfortably. He noted the ambulance service notes with the claimant denied hitting his head and denied loss of consciousness, there was minor damage to the vehicle with the claimant complaining of pain in the central neck region, pain in the shoulders and headache.
That the duration of post-traumatic amnesia and loss of consciousness are extremely variable and inconsistent with the ambulance service and the hospital notes. The doctor suggested that the development of post-traumatic stress disorder with flashbacks and reliving the experience strongly indicated that she was at least conscious and alert at the time of the accident.
Dr Carney noted that the claimant had degenerative changes prior to the motor accident which made her more vulnerable to an extension/flexion strain injury. However, there was no evidence of acute damage at the time of the motor accident. He opined there was no evidence clinically of radiculopathy and imaging studies did not suggest levels of canal or foraminal stenosis and/or disc prolapse likely to produce radiculopathy.
Dr Carney opined that, because of the psychiatric state, the claimant was an extremely unreliable sensory witness, and any descriptions of pain cannot be accepted as having a purely organic basis of and must be regarded with great caution.
The doctor noted that the neck pain may now be related in part to the fact that the claimant had become extremely reluctant to move her spine and was suffering from some adhesive capsulitis as a result of this. Conservative management was probably the most appropriate treatment and that the cervical spine problems reflect a psychiatric/psychological status far more than the physical effects of the injury which should have resolved within three months.
Dr Carney opined that there was no evidence of facial palsy and there was no evidence of sensory loss or undergoing major effect in the face. He considered the description of symptoms in this area almost certainly having a psychological basis. The doctor also noted that the leg symptoms did not fit any organic patterns and there was no basis in structural physical terms of a relationship to the nature of the impact to account for the symptoms which almost certainly have a purely psychological or psychiatric explanation.
Dr Carney opined that treatment along pain clinic lines and psychiatric management was attributable to the motor accident given the temporal connection. He could not find a physical basis for the prolonged pain however noted that if the claimant does have a psychiatric illness related to the accident, then then that may be a factor in the pain syndrome.
Dr Rosenthal, physician, provided a report dated 1 December 2022.[50] The doctor opined that the treatment in the first 12 months following the motor accident for soft tissue injury was reasonable and necessary. The doctor opined that the ongoing symptoms related to the pre-existing condition.
[50] Insurer’s bundle, p 96.
Dr Graham Vickey, psychiatrist, provided a report dated 7 December 2022.[51] The doctor opined that the claimant was suffering from a somatoform chronic pain disorder and did not require any assistance for any domestic tasks due to any psychiatric injury directly due the motor accident.
[51] Insurer’s bundle, p 106.
SUBMISSIONS
Claimant’s submissions dated 1 November 2022[52]
[52] Claimant’s bundle, p 1.
These submissions sought a review of the medical assessments.
The claimant submitted that the Medical Assessor did not correctly answer the question for the need for domestic assistance, specifically whether the motor accident gave rise to the need for domestic assistance.
The claimant noted that the Medical Assessor referred to the cessation of domestic assistance because the claimant repeatedly failed to participate in domestic or gardening tasks. This was not a relevant consideration for the need for domestic assistance.
The claimant noted the Medical Assessor’s findings of the right shoulder but did not consider this when determining the need for domestic assistance.
The claimant referred to the ambulance report, hospital records and subsequent treatment in relation to the cervical spine injury. Specifically, Dr Sergides and Dr Farey recommended spinal surgery whereas Dr Carney expressed a contrary view that the condition was “very unlikely” to respond to the proposed treatment.
In relation to the right shoulder injury, the claimant noted that it was mentioned in the ambulance report, claim form dated 31 July 2017 and the fact that she underwent an X-ray at hospital on 27 April 2017.
The claimant referred to the Medical Assessor’s findings of the right shoulder and the expression of opinion by Dr Carney that the claimant was reluctant to move her spine and was suffering from adhesive capsulitis.
Insurer’s submissions dated 9 September 2019[53]
[53] Insurer’s bundle, p 1.
The insurer noted that it had previously denied requests which sought surgical treatment, further chiropractic treatment, approvals for X-rays and scans of the right shoulder, further acupuncture, and any further domestic and gardening costs. It also advised Town Cars transport service in a letter dated 11 March 2019 that it was unable to provide further funding for these services.
The insurer relied on the opinion of Dr Paul Carney, neurosurgeon who provided reports dated 31 October 2017 and 11 April 2019. It submitted that Dr Carney diagnosed only a neck strain injury which was complicated by psychological factors. The doctor considered that there was no objective evidence that acupuncture has been effective and was very unlikely that surgery would be effective and may worsen the problem. He recommended conservative treatment including pain clinic options and continuing medication.
In the subsequent report Dr Carney opined that there was no objective evidence of any significant physical injury and considered the symptoms to be based on at least substantially, a psychological basis. The doctor opined that the scan changes showed degenerative changes, there was no evidence of damage and considered the claimant to be extremely unreliable sensory witness due to a psychiatric state.
The referral of Dr Sergides dated 3 August 2017 noted the doctor failed to provide clinical justification as to how the motor accident was the sole reason for the requirement for spinal surgery. We observe that the insurer is referring to a wrong test for causation.
The insurer noted that Dr Carney did not comment on injury to the right shoulder although noted the gap between the time of the motor accident and the onset of symptoms.
With respect to further acupuncture and chiropractic treatment, the insurer noted the opinion of Dr Carney that there was no evidence of previous acupuncture treatment had been effective and otherwise the Rehabilitation Progress Report of Moore rehabilitation dated
7 March 2019 which noted that the treatment did not have a positive outcome and that the physiotherapy significantly aggravated symptoms.The insurer referred to the receipt of paid domestic and gardening services including cleaning and laundry services, cooking and meal preparation services, and gardening maintenance services. It noted the opinion of Dr Carney was that the nature of the injury should have resolved within three months. The opinion of the Repacked Rehabilitation Progress report dated 7 March 2019 noted that the claimant had repeatedly failed to participate in domestic gardening tasks despite being required to do so by treatment plan. It submitted that no further domestic assistance was reasonable and necessary.
The insurer submitted that it should not be responsible for the continuing service of Town Cars noting that these transfers are in excess of the standard taxi fee and are therefore unreasonable.
Insurer’s submissions dated 23 November 2022[54]
[54] Insurer’s bundle, p 93.
These submissions were filed opposing the application to review the medical assessment.
The insurer submitted that the Medical Assessor provided sufficient reasons and the mere disagreement with his conclusion did not establish error.
RE-EXAMINATION
Ms Wall was medically examined by Medical Assessor Gibson. The examination report is as follows:
“Ms Wall was assessed alone.
Left hand dominant
Age: 59
PRE-ACCIDENT MEDICAL HISTORY
Ms Wall was involved in two prior motor accidents, in 1996 and 1994/96. On both occasions she said she had not sustained any physical injury.
Medically, she suffered with CMV, malaria and glandular fever. She has had various gynaecological surgery procedures over the years.
There was no other history of any prior motor accidents or work injuries. There were no other relevant medical or surgical issues.RELEVANT PERSONAL DETAILS
Ms Wall lives with her husband and 16-year-old son in Mosman. They have a 19-year-old son who stays with them over university holidays. Her husband has been diagnosed with pulmonary fibrosis over two years ago, so is restricted in his ability to perform physical activities.
Ms Wall had ceased work during COVID. She said that, due to her subject accident injured she was intolerant of prolonged sitting at a desk due to pain, and her work had gone online during COVID. She ceased work in January 2021, apart from some casual coaching work – she estimates at most a total of four weeks since 2021.
HISTORY OF THE SUBJECT ACCIDENT
Ms Wall had been the seat-belted driver involved in a four-car collision. She had been in traffic, which had slowed down, when she was hit from behind by a truck and pushed into the car in front.
She said all she could recall at the time of the impact was loud noises and people screaming, and noticing she had neck pain and a sore right shoulder from the seat belt. This was consistent with the ambulance records which had recorded complaints of neck and shoulder pain. However, there was no mention of loss of consciousness nor air bag deployment.
She was transferred to hospital and whilst there imaging was undertaken of her cervical spine and right shoulder. She was later discharged home.
She had come under the care of her regular general practitioner, Dr David Farbenblum, who had examined her on 28 April 2017.
She was referred for physiotherapy but found this treatment unhelpful.
She was reviewed by neurosurgeon, Dr Paul Carney on 31 April 2017. He commented that she suffered a neck strain injury, but this was complicated by psychological factors. He felt the MRI scan of 8 June 2017 demonstrated longstanding degenerative changes with no evidence from imaging studies ‘that the motor vehicle accident has produced damage of a structural nature likely to produce long-term ongoing symptoms. Nevertheless, there probably was a significant strain injury to the cervical spine and symptoms continue related to that…’ He did not support any surgical intervention to the cervical spine. The latter had been proposed by Dr Yanni Sergides in July 2017, being right C4/C5 and C5/6 lamino-foraminotomy and microdiscectomy at C5/6.
Ms Wall was referred to the Pain Management Research Centre at North Shore Hospital and they had recommended a three-week pain self-management program, ADAPT.
She had seen orthopaedic surgeon Dr Farey and he had recommended anterior decompression and C4/5 and C5/6 fusion.
She added that she and her husband were getting money together to have the cervical spine surgery ‘whatever happens.’
Ms Wall was also referred to Dr Hughes, shoulder surgeon, to exclude any right shoulder pathology. I understood there was further review with Dr Hughes this month.
POST-ACCIDENT MEDICAL HISTORY
In December 2019 she had fallen down the steps at home. She does not believe this caused any significant elevation of her accident related injuries, but she said that the reason she had fallen down was because of her reduced neck movements such that it is not possible for her to look down to navigate the stairs.
Ms Wall was diagnosed with breast cancer last year and on 8 June 2022 she had a lumpectomy, and this was followed by radiotherapy. She is currently on hormone therapy, with the cancer being in remission.CURRENT COMPLAINTS
Ms Wall reported constant posterior neck pain extending to the right trapezius and into the right arm and ulnar fingers.
The right shoulder pain is felt over the trapezius region and across the front of the chest wall, however not involving the shoulder joint per se.
In relation to low back pain, she said she has noticed this over the last three years, however, it was ‘not in the beginning.’ She thinks it had arisen as she was ‘so guarded about everything.’ The low back pain is now constant, but much less severe than the neck and right shoulder pain. She said that she ‘doesn't even notice the low back pain,’ only when ‘she thinks about it.’ She added that she could manage most things if the low back pain was all she needed to content with.
CURRENT TREATMENT
Ms Wall takes two gabapentin tablets in the morning and one at night. There was no other medication. She said she previously had a range of other prescription medications prescribed by the pain clinic, but these had subsequently been weaned off by her general practitioner.
CURRENT ACTIVITIES AND RESTRICTIONS
Ms Wall said she is restricted in the performance of domestic chores and self-care. She said she cannot dry her own hair, she cannot do up the bra. She generally showers only every second day. She can do very little housework. She is only able to manage stacking and unstacking the top drawer of the dishwasher. She cannot lift heavy pots. She cannot even walk at a brisk pace.
She said that because she can’t look down due to the neck pain, she is prone to falls and she has gained 18kg because she doesn’t exercise. She no longer socialises as this involves prolonged sitting. She no longer drives a car. She has no hobbies. She said she has become less and less able to do any home duties over time. She said her sleep is disturbed and she wakes at 3am of a morning. She has a depressed mood due to the pain.PHYSICAL EXAMINATION
Ms Wall spent almost the entire assessment standing rather than sitting, due to her reported symptoms. She appeared quite distressed by the pain. She had a normal gait and she could walk on heels and toes.
On examination of the cervical spine, there was midline and right-sided tenderness extending to the right trapezius region. Neck movements were restricted. Flexion and extension were negligible. Rotation was one-third normal to the right and half normal to the left. Lateral flexion was a third normal to the right, a third normal to the left. There was guarding with neck movements. As these were performed, she reported that ‘everything is crunching.’
On examination of the upper limbs, circumferential measurements were equivalent at arm and forearm. Reflexes were low amplitude bilaterally. There was no objective sensory loss in either upper limb. There was normal power bilaterally but with some giving way due to right-sided arm pain.
On examination of the lumbar spine, flexion and extension half normal, lateral flexion half-normal bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
Lower limb circumferences were equal. Straight leg raise was 45 degrees on the right with complaints of back pain and 70 degrees on the left with no pain complaints. Neurotension signs were negative bilaterally. There was no sensory abnormality in either lower limb. Reflexes were bilaterally equal and normal.
On examination of both shoulders, left shoulder movements were normal. The right shoulder movements were consistently restricted when measured with a goniometer.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 80 ° 180 ° Extension 40 ° 50 ° Internal Rotation 70 ° 80 ° External Rotation 70 ° 80 ° Abduction 40 ° 180 ° Adduction 15 ° 50 °
SUMMARY AND OPINION
Ms Wall is a 59-year-old woman who was involved in the subject accident on 26 April 2017. She has sustained soft tissue injuries to her cervical spine and right shoulder and potentially lumbar spine.”
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[55] and Insurance Australia Ltd v Marsh.[56]
[55] [2021] NSWCA 287 at [40], [41] and [45].
[56] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessor’s examination report and adds the following further reasons.
Injury
The claimant undoubtedly suffered a whiplash injury to the cervical spine caused by the sudden flexion and extension of the neck in the motor accident. There are contemporaneous complaints of cervical symptoms supporting the causal nexus between the motor accident and the onset of neck symptoms. The causal link is otherwise supported by the absence of pre-existing cervical symptoms proximate to the motor accident.
The MRI scan shows significant pre-existing pathology in the cervical spine. The pre-existing pathology made the claimant more vulnerable to both injury and the consequences of the motor accident.
We otherwise accept the claimant’s account that she was asymptomatic prior to the motor accident. Prior clinical notes occasionally refer to neck pain, the latest being in August 2013. There was no reference to neck pain after August 2013.
The insurer referred to opinions expressed by Dr Rosenthal and Dr Carney who accepted that there were soft tissue injuries but that any aggravation lasted either 3 months or up to 12 months. Neither doctor purports to explain why the effects of any cervical spine injury would have ceased in the suggested timeframes.
However, given the opinion of doctors qualified by the insurer, the Panel was conscious of the differing opinions of whether the claimant has a genuine neck disability aggravated by the motor accident. We have relied on the medical examination of Medical Assessor Gibson who opined that the claimant presented with genuine neck symptoms which had a pathological basis. Whilst there is significant evidence of psychological distress which would undoubtedly impact on the claimant’s perception of pain, the Panel accepts that the motor accident aggravated the underlying degenerative condition and rendered the condition symptomatic.
Further, there has been a consistency of complaint of neck pain since the motor accident. The claimant otherwise has support from treating neurosurgeons who opined that there was a pathological cause for her neck and arm symptoms.
We accept, based on the clinical examination of Medical Assessor Gibson, that the effects of the motor accident have not ceased.
There was a contemporaneous complaint of right shoulder injury in circumstances where there were no pre-accident symptoms in that body part. The mechanism of onset of symptoms is explicable through injury through the seatbelt where the claimant was the driver.
In April 2018 Dr Farey noted global restriction of the right shoulder consistent with adhesive capsulitis. In January 2019, Dr Hughes, the treating shoulder specialist noted obvious wasting of the right deltoid.
The medical reports refer to restriction of movement of the neck which would cause the wasting observed by Dr Hughes and the subsequent diagnosis of adhesive capsulitis made by Dr Farey. Based on Medical Assessor Gibson’s clinical findings of significant loss of right shoulder of movement, we accept that the claimant has probably developed adhesive capsulitis in the right shoulder. Based on our findings for the cervical spine condition where the claimant has grossly restricted her neck movements, we accept that this has caused the right shoulder condition.
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.[57] The MAC Act otherwise characterises the disputes as separate issues.
[57] 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.[58]
[58] [2018] NSWSC 1710 (Phillips) at [29].
Our findings on the cause of the various treatment are separately discussed later in these Reasons.
Reasonable and necessary
Ms Wall 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[59] Grove J stated:[60]
“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.”
[59] [2003] NSWCA 52 (Clampett).
[60] 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.[61]
[61] 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.[62] 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.
[62] 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”.
Our findings on “reasonable and necessary” are discussed below.
Specific questions
Our findings on the various proposed treatments are as follows:
Whether the surgery to the spine as proposed by Dr Yanni Sergides on
31 July 2017 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident. 1.We accept that the proposed surgery as recommended by Dr Sergides is causatively related to the motor accident relying on our previous findings of cervical spine injury and its ongoing consequences.
2. Whether the surgery to the spine as proposed by Dr Yanni Sergides on
31 July 2017 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.We do not accept that the surgery proposed by Dr Sergides is “necessary”. This recommendation was made six years previously in circumstances where surgical procedures have changed during this period. The question otherwise directs attention to the surgery proposed by Dr Sergides where Dr Farey has subsequently recommended a fusion at C4/5 and C5/6. The later surgery may be more beneficial to the claimant in stabilising the claimant’s cervical spine condition.
We are otherwise requested to express an opinion in the absence of recent scans in circumstances where radicular symptoms have varied over time.
Whilst the claimant has exhausted conservative measures, we are not satisfied that the procedure proposed by Dr Sergides is now “necessary”.
3. Whether any chiropractic treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 7 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
We interpret the words “MAS assessment” to be the date when the claimant was examined by Medical Assessor Gibson.
Based on our findings of ongoing causal relationship between the motor accident and neck pain, we are satisfied that chiropractic treatment, in an effort to alleviate neck pain, is caused by the motor accident.
4. Whether any chiropractic treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 7 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.
We do not accept the future chiropractic treatment is “necessary” as we do not accept that this is appropriate treatment due to the claimant’s present complaints and previous lack of response to such treatment. Further manipulative treatment may have adverse consequences and is potentially contraindicated.
5. Whether a one-off X-ray and MRI scans in relation to the Right shoulder as proposed by Dr Jeffery S Hughes on 18 January 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
Based on our findings of the right shoulder condition, we accept that there is a causal relationship between the need for this treatment and the request for a “one-off X-ray and MRI scans” [sic].
6. Whether a one-off X-ray and MRI scans in relation to the right shoulder as proposed by Dr Jeffery S Hughes on 18 January 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.
This treatment was recommended by the treating shoulder surgery, is of minimal cost, would provide a radiological diagnosis of the claimant’s condition and is accepted by medical experts (including the two medical specialists on the Panel) as medically appropriate for the right shoulder condition.
7. Whether any acupuncture treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 26 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
Yes, for the same reasons as chiropractic treatment and further that acupuncture may treat the right shoulder condition.
8. Whether any acupuncture treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 26 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.
We do not accept the future acupuncture treatment is “necessary” as we do not accept that this is appropriate treatment due to the claimant’s previous lack of response to such treatment.
9. Whether all physical injuries give a rise to a need for domestic assistance task from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.
Yes. We accept that the claimant has ongoing physical problems to the neck and right shoulder causatively related to the motor accident. This has created a need for some domestic assistance.
10. Whether any hours per week of domestic assistance task in relation to all physical injuries from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.”
The question is directed to whether “any hours per week” are reasonable and necessary and does not require us to quantify the need. The claimant undoubtedly has a need for domestic assistance by reason of her painful neck and right shoulder condition which would restrict her from performing heavier household tasks such as cleaning.
CONCLUSIONS
For these reasons the Medical Assessment Certificate dated 19 September 2022 is revoked. The replacement certificate is attached to these Reasons.
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