Wardah v QBE Insurance (Australia) Limited
[2023] NSWPICMP 411
•24 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Wardah v QBE Insurance (Australia) Limited [2023] NSWPICMP 411 |
| CLAIMANT: | Zoher Wardah |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 24 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 30 August 2019; the dispute related to the payment of an MRI scan and electrophysiological study estimated at $1500; claimant not re-examined; reference to section 42(4) of the Personal Injury Commission Act 2020; proportionality between the cost to the parties and the Commission and the importance and complexity of the matter; examination otherwise of no utility; MRI scan caused by accident as motor accident caused an aggravation of degenerative changes in lumbar spine; treatment acceptable medical procedure which is an appropriate diagnostic tool despite absence of neurological symptoms; modest cost; right upper limb electrophysiological studies appeared to be directed to right shoulder symptoms; tests not required for right shoulder symptoms; otherwise not satisfied of causal relationship between motor accident and study; Held – orders made for payment of expenses of MRI scan but not electrophysiological study; original assessment revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Treatment and Care Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 4 April 2023 and issues a replacement certificate that: 1. The MRI scan of the lumbar spine dated 10 February 2022 was reasonable and necessary in the circumstances and related to the injury caused by the motor accident. 2. The right upper limb electrophysiological test dated 8 February 2022 was not reasonable and necessary in the circumstances and did not relate to the injury caused by the motor accident. |
REASONS
BACKGROUND
Mr Zoher Wardah (the claimant) sustained injury in a motor accident on 30 August 2019 (the motor accident).[1] The claimant sustained various injuries when the insured vehicle exited a driveway, turned right and collided with the claimant’s vehicle.[2] Air bags in the claimant’s vehicle were deployed.[3]
[1] This is only a brief and non-exhaustive summary of the motor accident.
[2] Claimant’s bundle, p 24.
[3] Claimant’s bundle, p 29.
The insurer is liable to pay to Mr Wardah any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The medical disputes concern whether a right shoulder isotope and electrophysiological study dated 8 February 2022 and an MRI scan of the lumbar spine dated 10 February 2022 is reasonable and necessary in the circumstances and whether the need for the treatment is caused by the motor accident.
Pursuant to Schedule 2, cl 2 of the MAI Act, medical disputes about the treatment and care are declared to be medical assessment matters.
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[4] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[4] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT
The medical disputes were referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 4 April 2023. Medical Assessor Cameron appeared to have found that both treatments were not reasonable and necessary and were not caused by the motor accident.
In relation to the diagnosis of the injury and the proposed surgery, Medical Assessor Cameron stated that causation was established because “had the motor vehicle crash not occurred, the treatment would not have been requested”.
In relation to the issue of reasonable and necessary the Medical Assessor stated:
“The investigations with reference to the right shoulder are not reasonable and necessary, as this injury is not related to the motor vehicle crash.
MRI of the lumbar spine is not reasonable and necessary because there are not symptoms consistent with neurological impairment that can be related to the lumbar spine.”
THE REVIEW
The application for referral to a review panel of the medical dispute was made by the claimant within 28 days.
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.[5]
[5] 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[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[6] Section 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.[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 proceedings solely based on the written application.[8]
[8] 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.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The claimant’s submissions assumed that a threshold injury issue was before Medical Assessor Cameron. The initial directions issued by the Panel requested the claimant to explain how the threshold issue was before Medical Assessor Cameron as that was not clear from the medical assessment certificate.
Despite the claimant’s review submissions, he did not reply to our request to explain how the threshold issue was before Medical Assessor Cameron, and on review, before the Panel.
In these circumstances the Panel proceeds on the basis that the only disputes before it is the treatment issues outlined earlier in these Reasons.
STATUTORY PROVISIONS
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]
[10] See s 3B(2) of the Civil Liability Act 2002.
Section 3.24 of the MAI Act 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,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(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.”
SUBMISSIONS
Claimant’s submissions dated 26 August 2022[11]
[11] Claimant’s bundle, p 1.
The claimant referred to the following evidence supporting the conclusion that the motor accident caused injury to the right shoulder injury:
· Application for personal injury benefits;
· Certificate of capacity;
· reports to the general practitioner (GP), and
· ongoing complaints of right shoulder pain.
The claimant noted that the right shoulder MRI scan was not available for the previous Medical Assessors and their findings should be viewed in the absence of such evidence.
The claimant noted that Dr Guirgis recommended the isotope bone study and MRI scan of the right shoulder and the lumbar spine.
Claimant’s submissions dated 2 May 2023
The claimant referred to the MRI scan of the right shoulder dated 17 February 2022 and the claimant’s statement which established right shoulder injury and that the treatment was reasonable and necessary. He otherwise submitted that the Medical Assessor’s reasons were “confusing and in conflict” concerning causation of the right shoulder injury.
With respect to the lumbar spine the claimant referred to the alternative view of Dr Guirgis and submitted that the claimant required this treatment.
Insurer’s denial dated 2 February 2022[12]
[12] Claimant’s bundle, p 13.
The insurer denied the funding of the lumbar spine MRI scan because the CT scan dated
13 September 2019 showed mild degenerative changes with no evidence of neural impingement, the neurological examination was normal, and the claimant only sustained a lumbar spine injury which was “soft tissue in nature”.
Insurer’s submissions dated 29 September 2022[13]
[13] Insurer’s bundle, p 3.
The insurer noted that the claimant had only requested internal reviews for an MRI scan of the lumbar spine and right upper limb electrophysiological tests.
In respect of the request for the lumbar spine MRI scan, the insurer submitted that the claimant only sustained a soft tissue injury and imaging only revealed degenerative changes.
The insurer referred to pre-existing lumbar symptoms including the clinical records of
Dr Guirgis noting symptoms since 2007 and an accident in 2010. It was submitted that the claimant suffers from a pre-existing degenerative condition. Further the lumbar injury sustained in the motor accident was minor and soft tissue in nature evidenced by:· examination at hospital was non-tender;
· review by Dr Alsaad on 9 September 2019 recorded mild pain and tenderness;
· Dr Antoun diagnosed a musculoligamentous strain on 31 October 2019, and
· Dr Wallace did not diagnose a lumbar spine injury on 4 October 2019.
Medical Assessor Woo diagnosed a minor soft tissue injury to the low back and observed an unremarkable neurological examination.
The claimant did not sustain any structural image consistent with Dr Powell’s opinion dated 11 April 2022.
The lumbar spine MRI scan was not necessary as he had other imaging being:
· CT scan dated 13 September 2019 showed age-related degenerative changes;
· MRI scan of the whole spine dated 14 January 2020 revealed mild disc dessication, and
· bone scan dated 24 February 2021 revealed no evidence of active facet arthroplasty or significant disco vertebral degenerative changes.
Dr Powell and Dr Keller do not support the causative link for treatment.
In respect of the request for the electrophysiological study the insurer noted that these showed median neuropathy of the wrist and right C6/7 radiculopathy.
Medical Assessor Woo concluded that there was no wrist injury and no right shoulder injury caused by the motor accident. He noted that examinations at hospital, by Dr Guirgis in August 2019 and by Benchmark rehabilitation showed full right shoulder motion and nil complaints of wrist pain. There was no complaint to Dr Woo of wrist pain.
In October 2019 Dr Wallace noted normal neurological examination.
Reports of Workfocus Australia, Dr Powell and the treating physiotherapist confirm no right wrist complaints. Both Dr Powell and Dr Keller do not provide any support for right wrist treatment.
The insurer submitted that the evidence does not support any injury to the right upper limb.
Insurer’s submissions dated 23 May 2023[14]
[14] Insurer’s bundle, p 267.
These submissions were filed opposing leave to review the medical assessment.
The insurer noted that there was no threshold dispute before the Medical Assessor and otherwise submitted that the reasoning was sufficient based on the clinical expertise of the Medical Assessor.
MATERIAL BEFORE THE REVIEW PANEL
Given the limited issues before this Panel we have restricted the discussion of the evidence to the neck, right upper limb and lumbar spine.
Pre-accident medical records
Various submissions refer to prior complaints of pain in the left shoulder and lumbar spine.
Post-accident medical records
The ambulance report referred to pain in the shoulders, neck and lower back.[15]
[15] Insurer’s bundle, p 16.
The hospital discharge note referred to soft tissue injuries to the shoulders bilaterally and cervical tenderness at C5.[16] The cervical CT scan dated 30 August 2019 showed no abnormal pathology.[17]
[16] Claimant’s bundle, p 29.
[17] Claimant’s bundle, p 34.
The clinical note of Dr Alsaad, GP dated 2 September 2019 referred to pain in upper lumbar area radiating to left thigh, left shoulder pain and mild neck pain.[18]
[18] Insurer’s bundle, p 67.
A certificate of capacity dated 4 September 2019 referred to injury to the neck, both shoulders and lower back.[19]
[19] Claimant’s bundle, p 39.
A report from the GP dated 9 September 2019 referred to pain in the lumbar spine radiating to posterior left thigh, mild neck pain and “exacerbation of his old left shoulder problem”.[20]
[20] Claimant’s bundle, p 45.
The claim form dated 10 September 2019 referred to the motor accident causing injuries to the neck, both shoulders, low back and symptoms into both arms and legs.[21]
[21] Claimant’s bundle, p 24.
A CT scan of the lumbar spine dated 13 September 2019 showed mild degenerative changes with no evidence of neural impingement at any level. [22]
[22] Insurer’s bundle, p 55.
A benchmark initial needs assessment report dated 4 October 2019 noted complaints of neck pain, low back pain and pins and needles/numbness in both hands. Right shoulder movement was full with reduced range in the left shoulder. The occupational therapist noted that the claimant displayed “frequent pain behaviours”.[23]
[23] Insurer’s bundle, p 209.
Dr Raymond Wallace reviewed the claimant at the whiplash clinic on 4 October 2019.[24] The doctor noted neck pain at C5, C6 and C7 radiating to the left shoulder, intermittent numbness in the left hand and aching at the L4/5 spinous process radiating bilaterally to the buttocks. The doctor diagnosed whiplash associated disorder Grade II, suggested an exercise-based program which the claimant declined and noted the claimant wanted MRI investigations of the lumbar spine, left shoulder and cervical spine.
[24] Insurer’s bundle, p 235.
On 10 February 2021 Dr Guirgis opined that the claimant suffered from mechanical derangement of the cervical pain with disc involvement, left shoulder injury including torn supraspinatus tendon, mechanical derangement of the lumbar spine with right L5 sciatica and right and left cubital tunnel syndrome.[25]
[25] Claimant’s bundle, p 85.
Whole body bone scan with SPECT dated 24 February 2021 showed no evidence of active facet joint arthropathy or significant discovertebral degenerative change in the lumbar or cervical spines and no evidence of spinal fracture.[26]
[26] Claimant’s bundle, p 86.
On 14 December 2021 Dr Guirgis referred the claimant for electrophysiological studies of the right upper limb.[27]
[27] Claimant’s bundle, p 12.
The neurophysiological studies dated 8 February 2022 showed a right median nerve entrapment consistent with a mild carpal tunnel syndrome and a minor C6/7 radiculopathy.[28]
[28] Claimant’s bundle, p 55.
The MRI scan of the lumbar spine dated 10 February 2022 noted a history of right L5 sciatica for investigation.
On 18 January 2022 the GP referred the claimant for an MRI scan of the lumbar spine due to “severe lower back pain after a MVA”.[29] The scan showed spondylosis particularly at L3/4 and L4/5 with no significant central or neural exit foraminal narrowing.
[29] Claimant’s bundle, p 15.
The MRI scan of the right shoulder dated 17 February 2022 showed extensive tendinopathy of the supraspinatus with a rent tear.[30]
[30] Claimant’s bundle, p 49.
On 24 February 2022 Dr Guirgis opined that the claimant was suffering from right L5 sciatica, post-traumatic left shoulder symptoms and aggravation of cervical spine symptoms. The doctor opined that the electrophysiological tests for the right arm showed minor right C6/7 radiculopathy and median neuropathy over the right wrist. [31]
[31] Claimant’s bundle, p 47.
On 15 July 2022 Dr Lieu noted slow progress in the left shoulder following surgery and recommended ongoing rotator cuff strengthening exercises for both shoulders.[32]
[32] Claimant’s bundle, p 164.
OTHER MEDICAL ASSESSMENTS
On 18 January 2021 Medical Assessor Woo found that the claimant suffered a minor injury to the neck and back and a non-minor injury to the left shoulder.[33] The history recorded was of wrist numbness with no pain. Neurological examination showed diminished sensation in both hands not localised to an appropriate spina nerve root distribution. There was no motor loss and muscle wasting and reflexes were normal.
[33] Claimant’s bundle, p 68.
The Medical Assessor found that the claimant did not suffer injuries to the right shoulder and wrists (bilaterally).
A Review Panel certificate dated 18 October 2021[34] confirmed the medical assessment of Medical Assessor Woo.
[34] Claimant’s bundle, p 80.
QUALIFIED OPINIONS
Dr Tony Antoun provided a report dated 19 November 2019.[35] The doctor noted neck pain with numbness in the hand not in a specific dermatome and lower back pain radiating to the buttock and thigh. Based on the physical examination the doctor opined that the claimant had sustained a musculoligamentous strain of the cervical spine with no radicular signs, musculoligamentous strain of the lumbar spine with no radicular signs and left shoulder injury.
[35] Insurer’s bundle, p 105.
Dr Richard Powell, orthopaedic surgeon, provided a report dated 11 April 2022.[36] The doctor diagnosed musculoligamentous strain of the cervical spine with mild ongoing symptoms, bilateral soft tissue shoulder injuries and musculoligamentous strain of the lumbar spine with aggravation of minor underlying spondylotic changes.
[36] Insurer’s bundle, p 112.
Dr Powell noted the claimant exhibited features of a pain syndrome with a guarded prognosis. He accepted an ongoing causative relationship between the symptoms and the motor accident.
Dr Powell provided a further report dated 13 July 2022[37] opining that the motor accident probably aggravated underlying degenerative changes in the left shoulder and cervical spine.
[37] Insurer’s bundle, p 252.
Dr Andrew Keller, physician, was qualified by the insurer and provided a report dated
8 June 2022.[38] The doctor noted on examination mild pain on turning left in the cervical spine without radiculopathy, mild restriction of right shoulder movement and moderate restriction in the left shoulder.[38] Claimant’s bundle, p 153.
Dr Keller opined that the claimant sustained soft tissue injuries to the neck, back and shoulders. The doctor was not satisfied that the accident caused rotator cuff tendon tears and opined that the degenerative changes were due to working full-time in heavy manual work.
In a subsequent report Dr Keller noted prior left shoulder and lumbar spine complaints and doubted the relationship between the motor accident and the ongoing symptoms in the left shoulder.[39]
[39] Insurer’s bundle, p 248.
MEDICAL EXAMINATION
The claimant was not re-examined by the Panel. We are conscious that we are usually required to undertake a new assessment: Sydney Trains v Batshon.[40]
[40] [2021] NSWCA 143 (Batshon) at [41] per Leeming JA, White and McCallum JJA agreeing.
The amount of the claim is limited to a value of approximately $1,500. The findings of the Review Panel are not determinative of causation in any other dispute between these parties: Owen v Motor Accidents Authority;[41] Allianz Australia Insurance Ltd v Girgis;[42] Brown v Lewis[43] and Pham v Shui.[44]
[41] [2012] NSWSC 650.
[42] [2011] NSWSC 1424
[43] [2006] NSWCA 587.
[44] [2006] NSWCA 373.
The guiding principle of the Commission is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings (s 42(1) of the PIC Act). In particular, s 42(4) of the PIC Act emphasises proportionality between the cost to the parties and the Commission and the importance and complexity of the subject-matter. The sub-section provides:
“In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.”
Accordingly, the relevance of the matter is limited to the present dispute.
Further, the medical dispute relates to the provision of two specific past treatment expenses where an examination would be of minimal, if any, value.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) 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[45] and Insurance Australia Ltd v Marsh.[46]
[45] [2021] NSWCA 287 at [40], [41] and [45].
[46] [2022] NSWCA 31 at [11], [21] and [64].
The insurer accepted that the claimant injured his lumbar spine given the early complaints. It emphasised the minor nature of the collision in the context of minimal clinical signs and the various scans which showed mild degenerative pathology.
However, the claimant has been consistent with constant low back complaints and there is otherwise medical opinion from the insurer, such as by Dr Powell, that there was probably an aggravation of degenerative pathology.
Does the 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.[47] 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.
[47] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[48] 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 MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[48] [2018] NSWSC 1710 at [29] (Phillips).
These principles are consistent with Court of Appeal decision in McKenzie v Wood[49] where the Court noted that urgent medical intervention that would have been undertaken in due course established that the costs of surgery should be recovered.
[49] [2015] NSWCA 142 (McKenzie).
Our findings on injury are that the motor accident caused an aggravation of degenerative changes in the lumbar spine. The claimant undoubtedly has other causes for his symptoms. It is sufficient that the motor accident was a material contribution to the need. The scan was undertaken due to low back pain which was material contributed to by the motor accident.
We are satisfied that the need for the lumbar MRI scan was caused by the motor accident.
It is unclear why the right upper limb electrophysiological tests were ordered. The submissions proceeded on the basis that they were ordered due to right shoulder symptoms. That assumption is far from clear.
We accept, for the reasons provided by Medical Assessor Woo that the motor accident wrists and right shoulder were not injured in the motor accident. Whilst we are not bound by those reasons, we agree with them. We otherwise note that the claimant had full range of right shoulder movement recorded by Dr Antoun in early October 2019. The GP in a report dated 9 September 2019 only referred to the left shoulder injury.
The claimant correctly referred to an early reference to bilateral shoulder complaints. However, thereafter there was a recovery of symptoms in the right shoulder reflected by an absence of complaint. The subsequent right shoulder MRI scan showing some minor pathology but does not explain how there was previous recorded full range of movement in the right shoulder following the motor accident.
The wrists were otherwise not mentioned in any contemporaneous records or in the claim form as being injured.
We do not accept that there as a causal relationship between the motor accident and the need for the right upper limb electrophysiological tests.
Reasonable and necessary in the circumstances
Mr Wardah 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,[50] Grove J stated:[51]
“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.”
[50] [2003] NSWCA 52 (Clampett).
[51] 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.[52]
[52] 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.[53] 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.
[53] 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 circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The MRI scan is an acceptable medical procedure with a cost of around $750. It is an acceptable diagnostic tool which is far more precise than a CT scan. It performs a different function than a Bone SPECT scan which looks for arthritis and facet joint pathology. An MRI scan can find pathology such as disc involvement without herniation and instability such as anterolisthesis or spondylolisthesis. We accept that it is an appropriate diagnostic tool despite the absence of neurological symptoms.
The referral for the MRI scan noted that the claimant was suffering from “extreme” lumbar spine pain. Whilst the MRI scan did not provide a pathological reason for the extreme low back pain, it was and is a relevant diagnostic tool in providing suggestions for appropriate treatment.
For these various factors we accept that the MRI scan of the lumbar spine was reasonable and necessary.
As we noted earlier, the other right upper limb electrophysiological tests appeared to be directed to the right shoulder symptoms.
These tests are not required for shoulder symptoms and that appears to be the reason suggested by the claimant for the treatment. Based on the claimant’s submissions, we do not accept that those tests were required for shoulder symptoms and were therefore not necessary.
CONCLUSION
The medical assessment of Medical Assessor Cameron is revoked. A replacement certificate is set out at the commencement of these Reasons.
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