Warner v Insurance Australia Limited t/as NRMA Insurance (No 2)
[2023] NSWPICMP 335
•18 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Warner v Insurance Australia Limited t/as NRMA Insurance (No 2) [2023] NSWPICMP 335 |
| CLAIMANT: | Kevin Warner |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of treatment dispute and claimant’s application for review under section 7.26; single medical assessment about claimant’s referral to a rehabilitation specialist; Medical Assessor (MA) Harrington determined referral not related, not reasonable and necessary and would not improve recovery of claimant; Held – no medical examination necessary; dispute about a $200 consultation with a doctor who has seen the claimant before; Sydney Trains V Batshon distinguished; consideration of section 42(1) and (4) of the Personal Injury Commission Act 2020 and Rule 128 of the Personal Injury Commission Rules; Panel has no power to revoke or confirm section 3.28(3) decision as schedule 2(2)(c) has been repealed with no saving provision; referral concerned a further referral to a rehabilitation specialist who had provided significant input into claimant’s treatment; referral related to neck (causation disputed) and back (causation conceded); Panel found referral was related (in part) to injuries sustained in the accident; Panel found referral for single consultation was reasonable and necessary in the circumstances; Clampett v WorkCover Authority and Diab v NRMA Ltd applied; certificate of MA Harrington revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Harrington dated 31 October 2022 with regards to the medical assessment matter concerning the claimant’s referral to a rehabilitation specialist. 2. Certifies that the referral to Dr Laycock dated 31 March 2022 and the first consultation that occurred after that referral is related to the injuries sustained in the accident and is reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Kevin Warner was involved in a motor accident on 14 June 2019. He was stationary on his moped, wearing a helmet when he was rear ended by another vehicle.
Mr Warner, who was 66 at the time of the accident says he injured his neck and back in the accident, sustaining fractures at L1 and L3 and to his coccyx.
Mr Warner made a claim for statutory benefits against NRMA, the insurer of the vehicle that he says caused his accident. NRMA has accepted liability and paid some statutory benefits.
Five separate disputes about treatment have arisen in connection with the claim and Mr Warner has, through his solicitors, referred those disputes to the Personal Injury Commission (the Commission) for assessment in two separate applications. The first application was lodged in 2021 (proceedings numbered M10395945/21) and is the subject of a separate application for Review which has been determined by this Panel in a separate decision.
The second application was the subject of proceedings numbered M10529585/22 and concerned Mr Warner’s referral to a rehabilitation specialist. On 31 October 2022, Medical Assessor Harrington determined the dispute finding the treatment was not related to the accident, was not reasonable and necessary and would not improve the recovery of the injured person.
The claimant then lodged this application for review (the Review) and on 21 December 2022, a delegate of the President determined that there was reasonable cause to suspect a material error in the assessment and she allowed the Review was to proceed. The President’s delegate convened this Review Panel (the Panel) to conduct the Review, in accordance with s 7.26 of the Motor Accident Injuries Act2017 (the MAI Act).
LEGISLATIVE FRAMEWORK
General matters
Mr Warner’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in the state.
Statutory benefits are payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act and include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits for all eligible persons under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Section 3.24 provides as follows:
“(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 –
…
(c) 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.”
The term “treatment and care”, is defined in s 1.6 of the MAI Act as meaning 12 different types of treatment and care, one of which is, “medical treatment (including pharmaceuticals).”
Dispute resolution
Chapter 7 of the MAI Act provides for the assessment of claims disputes by merit reviewers and Members of the Commission. Division 7.5 of the MAI Act provides for medical assessments by Medical Assessors of the Commission including provisions relevant to an original medical assessment such as Medical Assessor Harrington’s, further medical assessments and the review of medical assessments by this Panel.[2]
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.
The term “medical assessment” is defined in s 7.17 as the “assessment of a medical assessment matter”. Section 7.17 also defines a “medical dispute” as a dispute between a claimant and an insurer about a “medical assessment matter”.[3]
[3] It also includes within the definition an issue about a medical assessment matter that arises in court proceedings or claims assessments.
Schedule 2(2) of the MAI Act declares five matters to be “medical assessment matters for the purposes of Part 7”. One of these is:
“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 (Entitlement to statutory benefits for treatment and care).”
ASSESSMENT UNDER REVIEW
Medical Assessor Harrington was asked to assess disputes about four types of treatment and he issued a single document comprising:
(a) certification in matter number M10395945/21 of the three medical assessment matters referred to him in those proceedings;
(b) certification in matter number M10529585/22 that the referral to a rehabilitation specialist does not relate to the injury caused by the accident, is not reasonable and necessary in the circumstances and will not improve the recovery of the injury person, and
(c) a statement setting out the Medical Assessor’s reasons for the decisions contained in the certificates.
As part of the assessment of the four disputes referred to him, Medical Assessor Harrington conducted a single medical examination of the claimant on 26 October 2022.
Mr Warner was at the time 69 years of age. The Medical Assessor takes a history of the accident noting the claimant was stationary on his moped when he was rear-ended, his scooter was knocked out from under him, and he landed on the bonnet of the car. He was wearing a helmet and protective clothing. He then rolled to the ground where he lay unable to move. He was transported to hospital by ambulance.
The claimant says he found to have an L1 compression fracture while at hospital and that after discharge, further fractures of the L3 transverse process and coccyx were found.
Mr Warner says he was placed in a brace, reviewed by his general practitioner (GP) and saw a neurosurgeon. He had outpatient rehabilitation and said he was basically housebound for two years due to his ongoing back pain and neurological symptoms.
Mr Warner complained of neck pain with reduced movement. He said he did a bit of gardening and some light housework. He goes sailing but cannot do all of the things that need to be done on the boat. He reported pins and needles in his ulnar three fingers and numbness of both big toes but no other radicular symptoms.
He reported his wife has chronic lymphedema and now uses a lymphatic massage machine because he can no longer massage his wife’s legs which he used to do before the accident.
There were no neurological symptoms or signs of radiculopathy when Mr Warner was examined.
Medical Assessor Harrington determined:
“It is my opinion that the treatment to date (physiotherapy and rehabilitation etc) is reasonable and necessary in the circumstances. I do not believe further treatment is required, including a further referral to a rehabilitation specialist.
I do not believe home modications are reasonable and necessary as a result of Mr Warner’s injuries causally related to the subject motor accident.
He tells me that he and his wife have purchased a portable massage machine to help his wife’s lymphatic drainage. I do not believe this is reasonable and necessary for Mr Warner’s injuries caused by the subject motor accident.
A new mattress may be considered reasonable and necessary if it has been assessed that his previous mattress did not provide adequate lumbar support and was detrimental to his recovery.
Given the tiemframe and rehabilitation to date, I do not believe Mr Warner requires a referral to a rehabilitation specialist.”
ISSUES IN DISPUTE
The claimant’s submissions
The claimant says he requires a referral to a rehabilitation specialist to assess his continuing treatment needs for his neck, back, legs and arm injuries.
The claimant notes the Medical Assessor did not give reasons for saying the treatment was not related or was not reasonable and necessary.
The claimant refers to the referral attached to the application noting that the claimant still has neck pain and stiffness, loss of feeling in his fingers and toes and low back pain.
The claimant says injured persons suffer relapses and have continuing symptoms and need treatment and the referral in this case indicates continuing disability. The claimant says there is no evidence to suggest no further treatment would improve his recovery and that is the point of the referral, to see if there is further treatment and care that would help him.
The insurer’s submissions
The insurer submits[4] that the claimant’s additional documents from Dr Laycock should not be considered by the President’s delegate as they were not before Medical Assessor Harrington.
[4] The submissions are dated 8 December 2022. The paragraphs are not numbers which makes referencing the submissions somewhat problematic.
The bulk of the insurer’s submissions appear to focus on the substance of the matters in the related proceedings (the home modifications and the massage machine).
The insurer says the Medical Assessor has considered the injuries; noted the conservative treatment, and finds that what has been provided to date was reasonable and necessary. The insurer notes the assessor recounts the claimant’s evidence that his injuries and condition have stabilised and finds that no further treatment is needed. The insurer says the Medical Assessor has explained his reasons.
The insurer says the Medical Assessor has referred to the claimant’s treatment by Dr Holford and Dr Laycock and that therefore Medical Assessor Harrington must have read their reports.
Procedural matters
In the related matter (concerning the assessments of the new mattress, home modifications and massage machine), the Panel sought submissions from the parties and then clarification from the President’s delegate as to what medical assessment matters had been allowed through to the Panel.
There was no such issue in these proceedings as the President’s delegate had clearly allowed the subject matter of these proceedings (the referral to the rehabilitation specialist) to the Panel.
The Panel met on 23 May 2023 and reported to the parties on 30 May 2023.
The Panel required additional information noting that these proceedings relate to a single referral to a rehabilitation specialist and that the original application form framed the dispute as follows:
“Dr Holford the claimant's GP has referred the claimant again to his treating rehabilitation specialist Dr Lee Laycock as he continues to suffer from neck pain, lumbar pain, paraesthesia in finger and toes, in order to ascertain if further treatment will assist in his rehabilitation.”
The claimant was asked to advise the Panel:
(a) whether the claimant had seen Dr Laycock;
(b) if the claimant had attended on Dr Laycock has a letter been written to the claimant’s GP reporting on that consultation, and
(c) what was the cost of that consultation and the claimant was requested to provide a copy of any invoice or receipt.
The claimant responded by providing five letters from Dr Laycock and Dr Holford. When the Panel again requested information about the cost of the consultation with Dr Laycock, the claimant’s solicitor responded as follows:
“I am not instructed with tax invoices for Dr Laycock. I am instructed that following the dispute with the insurer, Dr Laycock has bulk billed the appointments.
I understand the usual consultation fee to be approximately $200.
Perhaps the insurer could confirm, as it has likely paid for the consult fee in the past.”
Both the claimant and the insurer rely on documents not included with their original application and reply forms. As these documents are relevant to the proceedings in this matter, they will be admitted into evidence and considered.
REVIEW OF THE EVIDENCE
The referral in dispute
The referral to Dr Laycock (from Dr Holford) is dated 31 March 2022[5] and says:
“… for follow up of the problems arising from his MVA almost 3 years ago. He continues to suffer from neck pain and stiffness, paraesthesia in his left little fingers and big toes on both sides and low back pain. He has had physiotherpay and hydroptherapy and is wondering [if] anything more needs to be done.”
GP records
[5] Found in document AD8 in the Commission’s electronic file.
The claimant’s GP has produced pre-accident records[6] which suggest the claimant had a history of high cholesterol, gastroesophageal reflux disorder (GORD), sleep apnoea and depression (since 2011). His depression and anxiety caused him to make an income insurance claim and he was still having treatment and medication up to about two years before the accident when he ceased his medication advising his doctor that he was no longer depressed.
[6] Document A9, page 29 of the claimant’s original bundle.
The claimant has seen Dr Holford after the accident although not frequently. There does not appear to be a record of neck pain or neck symptoms in the records until 31 March 2022.
Dr Laycock’s reports
The claimant saw Dr Laycock on 18 December 2019. In a letter to NRMA’s case officer[7], Dr Laycock advised the claimant was making progress “but has not yet reached his peak level of strength, safety and function”. He noted NRMA had engaged Benchmark Rehabilitation but expressed the opinion the claimant needed to continue with his current program of a further eight sessions twice weekly.
[7] Dr Laycock’s letters start at page 2 in the claimant’s original application bundle.
Dr Laycock saw the claimant again on 19 February 2020 and reported to NRMA that the claimant was making progress although there had been a “bit of a set-back” with increased back pain. He referred to the bone scan suggesting fractures of the coccyx and the L3 spinous process and a muscle disruption injury at L3. He advised these did not require surgical input but that the rehabilitation time-frame was likely to be more prolonged.
He agreed that more of a self-directed program would be better and supported a trial of exercise physiology but that if there was a relapse he would need to return to the rehabilitation centre. He referred the claimant to the Be Active team for the exercise physiology.
In a letter dated 25 March 2020, Dr Laycock again wrote to NRMA noting he was in a self-directed phase supervised by an exercise physiologist. Covid had, at this time, hit restricting the claimant’s attendance at a gym twice a week and his hydrotherapy.
A further letter was sent to NRMA on 1 June 2020 where the claimant’s mood was noted to be low mainly due to the isolation of the pandemic. The claimant had rolled his ankle on 14 May 2020 while doing some of his exercises. The exercise physiologist was attending the clamant once or twice a week in his own home. The clamant had an exacerbation of his back pain due to the ankle injury but after a week or two it had gradually settled. He advised continuation with the exercise physiology and outpatient rehabilitation.
On 16 November 2020, Dr Laycock wrote to Dr Holford[8] noting that “Mr Warner is endeavouring to undertake his self-directed rehabilitation with regular walking and other exercises but agrees that he would benefit from some formal direction.”
[8] In a bundle of documents identified as AD8 in the Commission’s file.
Dr Laycock recommended:
(a) support five to six days a week;
(b) a modified program at Toronto Private Hospital one day a week for eight sessions;
(c) opinion from a clinical psychiatrist (he referred the claimant to Dr Corrigan), and
(d) the purchase of the replacement machine for the claimant’s sleep apnoea.
On 2 November 2022, Dr Laycock wrote to NRMA[9] advising that he had reviewed the claimant (and had previously reviewed him on 12 September 2022).
[9] Document A1 in the Commission’s electronic file.
Dr Laycock records that the claimant “continues to experience quite significant pain and related disability” flowing from the injuries he sustained in the accident. He noted the claimant’s pain and disability “has been compounded by a somewhat intransigent and combative approach by the NRMA.”
Dr Laycock notes that the claimant is trying to do as much as he can with domestic tasks, gardening and sailing in order to help his mood disorder (reactive depression or an adjustment disorder with a depressed and anxious mood) caused by the accident “and the approach taken by NRMA”.
The claimant was said to be having monthly consultations with a psychiatrist.
The claimant’s pain was summarised as follows:
(a) left buttock area and low back more on the left;
(b) left lower limb with pins and needles in both great toes and left foot drop when he is tired, and
(c) neck pain greater on the left side.
Activity was said to aggravate his pains.
On examination his neck posture was, “poked neck” and a good level of flexion but very limited extension. The range of motion in the thoraco-lumbar spine was reduced by 50%.
Dr Laycock expressed the view the claimant required:
(a) a trial of Zygapophyseal joint blocks at C4/5, C5/6 and C6/7 being the areas of greater tenderness and he referred the claimant to a Dr Schwarzer;
(b) a further 16 sessions at the outpatients rehabilitation at Toronto Private Hospital;
(c) therapeutic massage every one to two weeks to minimise his pain and maximise his level of ability;
(d) encouragement to participate in domestic tasks, gardening and sailing, and
(e) continued input from Dr Corrigan.
On 14 December 2022, Dr Laycock reviewed the claimant and said that Mr Warner “is pleased with his level of stability and some gains that have been made, particularly in recent days with the arrival of the requested new bed”. The claimant reported that for the first time in the three and a half years since the accident he has been able to sleep up to seven hours and his low back and upper body (including neck) pain had improved.
Dr Laycock noted the claimant had a “medico-legal” assessment of his sleep apnoea machine (probably a reference to the assessment of Dr Grainge) and a psychiatric assessment by Dr Vickery. The claimant was trying to do as much as he could and had returned to sailing.
The claimant had not had the paraspinal injections and was considering therapeutic massage. Dr Laycock supported this on a weekly basis for 10 sessions on a trial basis. His advice was for Mr Warner to try more advanced everyday tasks as this would improve his mood and his pain perception.
Other records
Ms Liang of the Toronto Private Hospital rehabilitation centre wrote to the insurer[10] noting that the claimant “is mostly pain free” and “is now able to complete most activities of daily living independent, with breaks”. He had spent an hour on the weekend raking leaves and another hour trimming the hedges. He was said to be limited in his caring roles and could not massage his wife’s lower limbs.
[10] While the letter is not dated, it refers to a visit on 15 January 2020. It is found at page 14 of the original application bundle.
NRMA rote to Mr Warner (and copied in his solicitor)[11] advising that NRMA was referring him to Benchmark Rehab a rehabilitation provider “chosen to meet your specific needs” but invited him to nominate an alternative preferred provider. Mr Warner was advised the rehabilitation adviser would develop a suitable rehabilitation program for him.
[11] Document AD3 in the Commission’s electronic file. The letter is not dated but was forwarded by email in November 2022 it appears to be dated much earlier than that as Benchmark has been involved with the claimant’s rehabilitation since July 2019.
Mr Proctor occupational therapist of Benchmark Rehab provided a report dated 16 July 2019[12] to the insurer. He recommended some domestic assistance and garden care for 12 weeks, a graded return to domestic tasks, hire of a shower chair, taxi transport to medical appointments, spray mop and bath brush and home delivery costs.
[12] Page 141 of the claimant’s bundle.
The subject of the dispute, the further referral to Dr Laycock dated 31 March 2022 was rejected by the insurer and the internal review was undertaken by NRMA on 30 May 2022[13].
[13] Document A12, page 156 of the claimant’s original bundle.
The internal review refers to many documents that the Panel does not appear to have. For example, there are six allied health recovery requests and 11 documents from Benchmark including questionnaires, rehabilitation plans and reports.
The internal review reasons refer to the case closure report from Benchmark Rehab (27 April 2020) which suggests the claimant had returned to all garden care activities, was pacing himself and was continuing to improve. A report from Dr Laycock suggesting the claimant’s mood was depressed but that Mr Walker was continuing with his self-directed rehabilitation. The internal review also refers to exercise physiology and the claimant being discharged from the program “having reached activities of daily living goals”. Finally, the internal review refers to reports from Dr Corrigan psychiatrist whose last report suggested three more sessions were required.
Medico-legal assessments
The claimant has put no medico-legal reports before the Panel.
The insurer relies on a report of Dr Powell, orthopaedic surgeon dated 4 January 2023.[14] He notes the claimant’s injuries included a compression (33%) fracture of L1 and fractures of L3 and the coccyx. He notes the rehabilitation programme under the care of Drs Laycock and Holflord. He also records musculoligamentous injury of the cervical spine.
[14] Part of document AD10 in the Commission’s file.
The claimant reported pain in the neck mainly on the left side and pins and needles in the two digits of the left hand. There was also lumbar spine pain radiating into both legs and on the right to the knee and in the left to the foot.
The claimant denied any previous neck or back injuries but acknowledged his previous depression.
He was noted to be “most compliant and co-operative”.
On examination of the cervical spine there was tenderness, no spasm but dysmetria. There were no neurological signs.
On examination of the lumbar spine there was no spasm, restricted motion and no neurological signs other than some reduced sensation over the ankles.
Dr Powell accepted the claimant injured his neck and back as a “direct result of the subject motor accident”. He accepted that, as at the time of his examination the claimant had stabilised and had reached “a state of maximum medical improvement”.
In terms of treatment, Dr Powell refers to the brace and the rehabilitation program and says, “the treatment received to date was entirely appropriate and would be considered reasonably necessary for the management of injuries sustained in the subject motor vehicle accident.” He advised the continued use of medications and a home-based exercise programme. He was of the view no future treatment was needed.
He assessed whole person impairment (WPI) at 10% for the back and 5% for the neck making a total of 15%.
A supplementary report from Dr Powell dated 16 February 2023 amended the WPI assessment to 10% on the basis that having reviewed the post-accident documentation he revised his opinion that the claimant’s current state did not include a cervical spine component. In other words he was not satisfied the claimant injured his neck in the accident.
CONSIDERATION OF THE ISSUES
Is a medical examination necessary?
Section 7.26(6A) provides that if a re-examination of the claimant is to occur only one of the medical assessors on the Panel can undertake the re-examination. There is no provision in the Act that says a medical examination must occur in every case.
The Panel is aware of the Court of Appeal decision in Sydney Trains v Batshon[15] which says:
“[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings …”
[15] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Batshon concerned a workers compensation medical assessment matter dealing with WPI. It also concerned a matter originally before the Workers Compensation Commission and not the Personal Injury Commission. Paragraph 41 of the decision is an observation of what happens in motor accident matters occurring before 1 December 2017 and a practice note from 2005 is referenced later in the paragraph. The case does not mandate a re-examination in every motor accident case but talks of the “default position” which “generally applies” and would apply if a party objected to an assessment on the papers. The observations of the Court also suggests the option of no re-examination may be available where there is no dispute, ambiguity or uncertainty about findings.
The Panel notes that rule 128 of the Personal Injury Commission Rules provides that
“(1) A panel for panel review proceedings is to conduct and determine the proceedings in accordance with procedures determined by the panel.
(2) A panel may determine the proceedings solely on the basis of the written application.”
Section 42(1) of the Personal Injury Commission Act 2020 (the PIC Act) sets out the “guiding principle” for the Act and the Commission’s rules which is “is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 42(4) 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.”
The current Review proceedings concern a dispute over a consultation with a rehabilitation specialist that has taken place, and which has cost in the order of $200. Presumably the claimant has paid it. While that is not an insignificant sum, the Panel is of the view that it is not proportionate to hold a medical re-examination in respect of this single consultation.
The Panel has considered the documentary material and is of the view that a just and fair decision can be made on the papers provided by both parties in the review.
Was a s 3.28(1) certificate required?
Medical Assessor Harrington certified in accordance with s 7.23(1) three things:
(a) that the referral to the rehabilitation specialist for the lumbar spine is not related to the injuries caused by the accident;
(b) that the referral to the rehabilitation specialist for the lumbar spine is not reasonable and necessary in the circumstances, and
(c) the referral to the rehabilitation specialist will not improve the recovery of the injured person in accordance with s 3.28(3).
The Panel refers to its decision in the related proceedings and notes that, the parties did not refer a dispute about whether the treatment will improve the recovery of the claimant, that s 3.28(3) does not apply because the claimant has more than threshold (minor) injuries and that Medical Assessor Harrington should not have issued a certificate in respect of a s 3.28 dispute.
For the same reasons expressed in that decision, the Panel is of the view it has no power to interfere with the certificate about whether the rehabilitation referral will improve the recovery of Mr Warner. While s 3.28(3) has been repealed with savings provisions, the dispute resolution provision in Schedule 2(2)(c) have been repealed without any savings provision.
Is the referral to the rehabilitation specialist related to the injuries caused by the accident?
There is no dispute between the parties that the claimant injured his lower back in the accident. There is a dispute about causation of the neck injuries.
The referral to Dr Laycock dated 31 March 2023 refers to both the claimant’s neck symptoms (causation disputed) and the claimant’s lower back symptoms (causation conceded).
The Panel is of the view that the referral is related (albeit in part) to the injuries caused by the accident. The accident is an equal and material contribution to the need for the referral to Dr Laycock.
Is the referral reasonable and necessary in the circumstances?
Is it necessary?
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW [107], Grove J stated:[108]
“[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.”
The test in the MAI Act is whether treatment is reasonable and necessary and a stricter test than reasonably necessary where, as the court in Clampett found, the word reasonably modified or softens the word necessary.
In Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
In addition to the words “reasonable” and “necessary” are the words “in the circumstances” which direct the Panel’s attention to the particular circumstances of the claimant in the proceedings before the Panel and the claim.
In Mr Warner’s case, his GP found it necessary to refer him to Dr Laycock and the claimant found it necessary to attend and pay for it himself. Mr Warner has a pre-accident history of anxiety and depression. According to the records he has developed a post-accident mental health condition of adjustment to his injuries and depression. He sustained a serious 33% compression fracture of one lumbar vertebra and fractures of other parts of his spine. Mr Warner’s accident occurred before the pandemic, but his treatment and rehabilitation has been frustrated by the pandemic.
When all of these matters are considered, it is the Panel’s view that the referral to Dr Laycock of March 2022 is appropriate, effective and has contributed to the claimant’s continued recovery and independence in his pain management.
FINDINGS AND CONCLUSION
The Panel is therefore of the view that the referral to Dr Laycock dated 31 March 2022 and the first consultation that occurred thereafter with Dr Laycock is related to the injured caused by the accident and is reasonable and necessary in the circumstances.
While Dr Powell (for the insurer) applied the “reasonably necessary” workers compensation test when offering his opinions, the Panel notes that he considered the treatment up to the date of his report (January 2023) was reasonable, necessary and appropriate.
The Panel is not making any finding in relation to any further consultations with Dr Laycock or any of the further treatment Dr Laycock has recommended.
The Panel is not making any finding in relation to whether this referral will improve the recovery of Mr Warner under s 3.28(3).
As the Panel has come to a different view to that of Medical Assessor Harrington, it follows therefore that his certificate must be revoked.
0
2
0