Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 9 February 2024 and issues a new certificate determining that:

The Review Panel revokes the certificate dated 9 February 2024 and issues a new certificate determining that:

relates to the injury caused by the motor accident.

1. Mr Rizwan Mughal (the claimant) sustained injury in a motor accident on 25 August 2020. The insured vehicle entered the roadway and collided with the claimant who was knocked off his motor bike travelling at 70km per hour.[1]
2. The insurer is liable to pay Mr Mughal any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issues presently in dispute is whether proposed lumbar spinal discectomy surgery at L4/5 is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.
3. Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about treatment and care are 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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
4. The medical dispute before the Panel is whether lumbar spinal discectomy is reasonable and necessary in the circumstances and whether that surgery is relates to the injury caused by the motor accident.

1. The medical dispute was referred to Medical Assessor Wallace who issued a Medical Assessment Certificate dated 9 February 2024 (the medical assessment certificate).
2. The Medical Assessor described the treatment following the motor accident as:

"At that time he was noted to have sustained fractures involving the distal shaft of the left femur and mid-shaft of the left tibia as well as penetrating injury to the left knee and an aortic dissection and possible mesenteric artery injury which was treated non-surgically. He was taken to the operating theatre and underwent insertion of an aortic stent on 25 August 2020. He was returned to the operating theatre on 26 August 2020 and underwent a debridement of the wound of the left knee and open reduction and internal fixation fractures involving the left femur and left tibia with intramedullary nails.

In the post-operative period he was noted to be suffering from malrotation, shortening of the left knee and he was returned to the operating theatre on 2 September 2020 and underwent revision fixation at the fracture. After his discharge from hospital he was reviewed by his Local Medical Officer and referred for physiotherapy and prescribed analgesic medication. He continued under the care of his treating Orthopaedic Surgeon, Dr Laird who recommended further surgery. He was re-admitted to hospital on 6 May 2022 and underwent arthroscopic debridement at the left knee with removal of he left tibial nail. At that time a patellar chondroplasty and partial medial and lateral meniscectomies were performed."

1. The Medical Assessor noted that the claimant did not recall when lumbar spinal pain commenced noting that there was no record by Dr Laird of any lumbar spine symptoms in the period August 2000 to 22 May 2022. It was noted by Dr Reiter on 1 September 2022 that there was a new condition which commenced about one month following the left knee surgery which occurred in May 2022.
2. The Medical Assessor concluded that the onset of left buttock and left leg symptoms commenced approximately two years after the motor accident.
3. The neurological examination undertaken by the Medical Assessor was normal.
4. The Medical Assessor concluded that the disc protrusion at the L4/5 level occurred in

mid-2022. He opined that if the claimant had any significant lumbar spinal disc protrusion at the time of the motor accident, then there would have been an immediate onset of symptoms consistent with radiculopathy. 5. The Medical Assessor opined that the proposed surgery was not reasonable and necessary as there was no evidence of left L5 radiculopathy at the time of the clinical examination with normal function power and sensation in the left lower leg.

1. The claimant sought a review of the medical dispute.
2. The President's delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
3. 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.
4. The review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
6. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
7. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
8. The claimant filed a bundle of documents for the Panel's consideration. The insurer advised the Panel through the Commission portal that "all relevant documents have been included in the Claimant's document bundle".

1. Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[8] In Raina v CIC Allianz Insurance Ltd[9] 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."

1. Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
2. Clause 6.7 of the Guidelines provides:

"There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible."

Claimant's submissions dated 5 December 2023[10]

1. The claimant referred to the opinion of Dr Singh dated 30 November 2023 which supported the claimant's case on causation and the need for surgery.
2. The claimant submitted that the treating clinical records confirmed that low back pain was present immediately after the motor accident and noted the insurer's submissions that the claimant conceded and on a delayed onset of pain as "factually incorrect and potentially misleading". The claimant referred to the following records which referred to low back pain:
   • GP report dated 10 September 2020;
   • certificate of capacity dated 11 October 2020, and
   • lumbar spine x-ray report dated 13 October 2020.

Claimant's submissions dated 12 March 2024[11]

1. These submissions were filed seeking leave to review the medical assessment.
2. The claimant submitted that there was extensive evidence of a complex, debilitating and critically painful left leg injury which "diverted attention away from any back injury as the leg injury was the primary focus of treatment and rehabilitation".
3. The claimant submitted that the leg injury camouflaged the early onset of low back pain. He further submitted that any low back injury was due to malalignment and/or altered gait and relied on the opinion of Dr Singh dated 16 May 2023.
4. The claimant noted that whilst Dr Laird, treating knee surgeon, did not record complaints of low back pain, such complaints were made to treating doctors and to the insurer during the period.
5. The claimant submitted that the biomechanics of the accident could have caused injury to the L4/5 disc noting that it was a very serious motor accident and that the onset of increasing and new symptoms followed a claims related surgical procedure. The claimant submitted there was no evidence of any other possible cause for the L4/5 disc pathology other than the motor accident.
6. The claimant referred to the presence of the L4/5 disc injury seen on the CT scan dated

23 September 2022 and the MRI scan dated 22 February 2023. 7. The claimant submitted in accordance with his statement that the low back pain was aggravated on the commencement of physiotherapy and rehabilitation some 10 months after the accident. That treatment was approved by the insurer. 8. The claimant also relied upon the fact that the low back pain significantly increased after the tibial nail removal surgical procedure on 6 May 2022. That timeframe was consistent with what was reported to medicolegal specialists (Dr Reiter and Dr Gothelf) that he was suffering from a different kind of pain at that time. 9. The claimant submitted that significantly restricted straight leg raising was a positive clinical sign which, in combination with the radiological evidence of L4/5 impingement, was sufficient to satisfy the test for the need for surgery.

Insurer's submissions dated 17 October 2023[12]

1. The insurer disputed that the claimant suffered an injury to the lumbar spine caused by the motor accident. It noted that the first mention of low back pain was on 13 October 2021 in an ergonomic assessment arranged by the insurer, that is more than 12 months after the motor accident.
2. The insurer submitted that Dr Singh's opinion on causation was "difficult to follow" and describe the opinion as "not that simple in terms of causation".
3. The insurer noted that there was no complaint of low back pain to Dr Reiter on 23 February 2022. A further report dated 1 September 2022 did not diagnose any injury to the low back.
4. The insurer referred to the opinion of Dr Gothelf which he described as "unusual". It noted that Dr Gothelf did not find verifiable radiculopathy and submitted in those circumstances the surgery was not reasonable.
5. The insurer submitted that the fact that the insurer funded Dr Singh's initial consultation was not an admission as to injury or the reasonableness of the surgery: Insurance Australia Ltd v Ural.[13]
6. The insurer submitted that the amount of the common law settlement had no relevance to the determination of the issue before the Commission.

Insurer's submissions dated 28 March 2024[14]

1. These submissions were filed opposing leave to review the medical assessment.
2. The insurer submitted that the Medical Assessor was entitled to conclude that the failure to complain of low back pain to the treating orthopaedic surgeon was consistent with not suffering from significant low back pain. It also submitted that the Medical Assessor was entitled to conclude that the claimant suffered an L4/5 disc protrusion in mid-2022 that was unrelated to the motor accident.
3. The insurer submitted that the gradual emergence of symptoms is more consistent with degenerative changes progressing and causing the radiculopathy in June 2022.
4. The insurer submitted that the Medical Assessor explained why he disagreed with Dr Singh's opinion.
5. In relation to the issue of reasonable and necessary, the insurer submitted that the claimant's submission that significant restricted leg raising was sufficient to require surgery was without a medical justification. It noted that the medical assessor found no evidence of neurological deficit in the claimant's left leg and quite correctly concluded that the surgery to decompress the nerve was unreasonable in the absence of neurological signs.

1. There are no pre-accident medical records before the Panel. The claimant's consistent history is that he was asymptomatic.

1. Dr Syed Zafar, general practitioner (GP) provided a report dated 10 September 2020 noting the recent motor accident when the claimant sustained multiple injuries to the left leg, abdomen and back.[15]
2. A certificate of capacity dated 11 October 2020 referred to multiple injuries caused by the motor accident including lower back and right hip pain.[16]
3. The claimant underwent an X-ray of the lumbar spine, pelvis, left hip, left femur, left tibia and left fibula on 13 October 2020.[17] The X-ray of the lumbar spine was reported as normal with vertebral body and intervertebral disc heights maintained.
4. An ergonomic assessment report provided by IOH Workplace health dated 14 October 2021 noted the certificate of capacity dated 13 October 2021 which referred to various injuries including lower back pain.[18]
5. A CT scan of the lumbar spine dated 23 September 2022 referred to low back pain radiating to the left leg.[19] The scan showed broad based disc bulging at L4/5 and L5/S1 with slight left of midline broad-based bulge at L5/S1 in close proximity to the left-sided traversing S1 nerve root.
6. An X-ray and MRI scan of the lumbar spine dated 22 February 2023 showed a left posterolateral disc protrusion descending upon the left L5 nerve root at L4/5.[20]
7. Dr Bhisham Singh, surgeon, provided a report dated 27 February 2023.[21] The doctor noted a history of the motor accident causing various injuries with "increasing back pain". Examination showed left-sided positive root tension signs with depressed reflexes in the lower limb.
8. Dr Singh noted the MRI scan showed that the L5/S1 disc was vestigial, and the L4/5 was the "last functioning disc". The doctor noted that the scan showed a left-sided contralateral focal protrusion with impingement upon the descending nerve root. He opined that the motor accident was the cause of the disc herniation noting the claimant had symptoms after the motor accident and was previously asymptomatic.
9. On 5 April 2023 Dr Singh noted significant relief of symptoms following an injection at L4/5 with the return of pain. The doctor advised that the response to the injection localised the source of the pain and recommended neurological compression of the herniated disc by way of L4/5 discectomy.[22]
10. Dr Singh provided a further report dated 16 May 2023.[23] The doctor noted the claimant was asymptomatic prior to the motor accident, had severe and life-threatening injuries, had difficulty walking with an altered gait pattern and had back pain following the accident.
11. Dr Singh opined that the prognosis was good with surgery with expected improvement of back and leg pain and stated that without surgery the claimant can expect ongoing pain and loss of function.
12. Dr Singh provided a further report dated 30 November 2023.[24] The doctor noted that the claimant had limitation function because of sciatica secondary to disc herniation which was related to the accident.
13. Dr Singh noted that the claimant had failed conservative treatment and that the aim of the surgery was to improve the leg pain by decompressing the nerve root which would be a long-term benefit to the claimant who wished to return to the workforce. The that when last seen in April 2023 the claimant did not demonstrate significant weakness in the league but had root tension signs and pain.
14. Dr Singh opined that delaying surgery for a period will result in chronic pain which would be difficult to treat.

1. Dr Loretta Reiter, rheumatologist, was qualified by the claimant and provided a report dated 23 February 2022.[25] The report assessed the claimant's injuries but did not refer to the lumbar spine.
2. Dr Reiter provided a further report dated 1 September 2022. The doctor stated that since the last review the claimant "had a new condition" and stated:[26]

"[H]e does have a new condition which started about 1 month following his left knee surgery. He complains of severe left buttock pain that radiates down the back of his leg to his calf with mild tenderness and numbness in the back of his calf which increases in intensity with bending and walking. When he wakes in the morning he has no pain in his left buttock or left lower limb."

1. The claimant provided a statement dated 22 September 2023.[27] He noted that the lower back injury was first mentioned in a certificate of capacity dated 11 October 2020 and that he underwent a lumbar spine x-ray on the following day.
2. The claimant stated that for the first 10 months or so following the motor accident he was not doing anything which would have aggravated his lower back as it is having physiotherapy and rehabilitation. He noticed increasing low back pain during that period.
3. The claimant referred to the ergonomic report of IOH dated 14 October 2021 which referred to the lower back. He also stated that Allianz approved initial treatment for the lower back injury including cortisone injections.
4. The claimant stated that the lumbar spine pain worsened significantly following the tibial nail removal procedure performed in May 2022. He stated that he then experienced referred pain radiating to the left buttock and down the left leg.
5. The claimant then underwent a CT scan and conservative treatment including physiotherapy with referral to a neurosurgeon in February 2023. The claimant stated that cortisone injections only temporarily relieve symptoms. There was no history of prior back pain prior to the motor accident and nothing since the accident to explain a lower back injury other than the treatment and management of his primary related injuries and the prolonged period of limping and walking with a normal gait.

1. The claimant was medically examined by Medical Assessor Dixon who provided the following examination report.

"This 26-year-old claimant was in involved in a motorbike accident on his way to work on 25 August 2020. He was wearing a helmet and protective gear when riding his motorbike through Padstow and while travelling straight in the right-hand lane, a Ute emerged from a driveway on his left, turning right and collided with the claimant on his left side, throwing him from his bike onto the roadway. He sustained loss of consciousness. An ambulance transported him to Liverpool Hospital where he was diagnosed with aortic dissection and fractures involving the distal shaft of the left femur and mid shaft of the left tibia and a compound injury to his left knee and a possible mesenteric artery injury which was managed non-surgically.

He had insertion of an aortic stent on 25 August 2020 and on 26 August 2020 he had debridement of the wound of his left knee and open reduction and internal fixation of the fractures of his left femur and tibia involving intramedullary nails and cross fixation screws.

In the post-operative period, it was noted he had malrotation and shortening of the left leg and returned to the operating theatre on 2 September 2020 and had provision fixation of the fracture to his tibia. He had review by his GP and physiotherapy and took analgesia.

His orthopaedic surgeon, Dr Laird, recommended further surgery and on 6 May 2022 he had arthroscopic debridement of his left knee and removal of the left tibial nail and at that time, had arthroscopic patella chondroplasty and a partial medial and partial lateral meniscectomy performed.

It was after removal of the tibial nail that he commenced to mobilise more fully and during this time was aware of low back pain becoming more severe with left sciatica extending through the buttock to the left calf.

He did have review by a rheumatologist Dr Reiter, on 17 February 2022 but did not complain of lumbar pain or sciatica and on review by his orthopaedic surgeon on multiple occasions between August 2020 and May 2022, he did not complain of lumbar spinal symptoms.

However, Dr Reiter did note on 1 September 2022 that the claimant has a new condition that started one month following his left knee surgery on 6 May 2022 with severe left buttock pain radiating down his leg to the calf with tenderness and numbness at the back of his calf which is increased by stooping and bending and walking. He had review by his GP and was referred for physiotherapy. He had a CT scan of his lumbar spine on 23 February 2022 which showed evidence of a disc bulge at L4/5 and he was referred to Dr Singh, a spinal surgeon, who assessed him initially on 27 February 2023 and x-rays and MRI were arranged on 22 February 2023 which showed a left sided disc protrusion at L4/5 impinging on the left L5 nerve root.

On 5 April 2023 Dr Singh recommended operative intervention in the form of L4/5 microdiscectomy.

The claimant has not suffered any other further relevant injury or condition since the subject motor vehicle accident.

The claimant confirmed that he had an altered gait since the motor accident due to the severity of the left leg injury and subsequent surgeries. Gait had improved following recent surgery.

He has pain in his lower back with lumbar stiffness with sciatic pain radiating through his left buttock to the left calf. The pain is aggravated by prolonged standing and heavy lifting and carrying as well as bending and stooping. The pain is relieved by lying down. He has had intermittent paraesthesia of the posterior area of the left leg to the level of the ankle and complained of ongoing stiffness in his lumbar segment.

He takes Palexia for analgesic medication which he sometimes takes during the day when necessary and more usually at night.

He was 5'11" tall and weighed 90kg. He presented in a straight-forward manner without embellishment.

On examination of the lumbar spine on 28 March 2025 there was mild stiffness of the lumbar segment with flexion decreased by one quarter and extension by one third and lateral flexion decreased by one third to the right and one quarter to the left which was associated with low back pain. There was no erector spinae muscle spasm today, but he had tenderness in the left paralumbar region and adjacent to the L4/5 facet joint region. His straight leg raise on the left was 50 degrees and there was a positive sciatic nerve root stretch test, and his straight leg raise on the right was 60 degrees and the sciatic nerve root stretch test was negative on that side. There was no wasting of either thigh measuring 47cm each, 10cm above the superior pole of the patella and there was 1cm of wasting of his left calf measuring 38cm compared with 39cm on the right.

His knee jerks were present and symmetrical. His medial hamstring jerk required reinforcement on the left and his ankle jerks were present. His plantar responses were negative. His power was grade 5 out of 5 and there were no objective sensory losses in a dermatological distribution. He had multiple scars in his lower extremity, a proximal scar at his hip where his nail was inserted and a lateral scar of his thigh where his fracture was reduced and smaller scars where cross fixation screws were inserted distally. At the knee there was a curved scar where he had debridement of his knee and there were scars distally for cross fixation screws as well as a longitudinal scar for the open reduction of his fractured tibia. The intramedullary nail remains in situ in the femur and the hardware has been removed from the tibia.

His normal gait was satisfactory as was toe walking. Heel walking was associated with low back pain and squat testing was associated with low back pain.

His investigations include a CT of the lumbar spine on 23 September 2022 which showed a disc bulge at L4/5.

X-ray on 22 February 2023 showed a transitional vertebra at L5 with a vestidual disc and an enlarged left lateral mass. This appears consistent with the paralumbar tender area today.

MRI investigation of the lumbar spine on 22 February 2023 showed mild annular bulge at L3/4 with some far-left lateral annular tearing at L4/5 with a focal disc protrusion impacting on the left L4 nerve root with a vestigial disc at L5/S1.

In summary this claimant has developed back pain and left sciatica when he commenced fully mobilising after removal of his intramedullary nail in the tibia. Up until that point, he had been distracted by his multiple injuries including aortic repair of the left thigh, femoral and tibial operations and he had been mobilising, eventually weight bearing as tolerated. It was not until the intramedullary nail was removed from his tibia and he started to commence walking more freely, that he became aware of increasing low back pain and left sciatica.

Clinically, he has low back pain with lumbar stiffness with dysmetria and left sciatica with an L5 radiculopathy. His treating spinal surgeon is concerned that sustained pressure of the far lateral disc protrusion on the L5 nerve root will cause more chronic pain and has advised that he have L4/5 microdiscectomy.

This operation is indicated. It is reasonable and necessary. While initially there was no complaint of sciatica, this was explained quite satisfactorily today in that it was not until he started fully weight bearing and was trying to stride out that he was aware of the back condition which is exacerbated by prolonged standing, repetitive bending and stooping as well as the sciatic pain, both of which disturb his sleep, for which he requires Palexia at night.

He wishes to proceed with surgery as he is finding it difficult to live with low back pain, lumbar stiffness and radicular complaint, namely his left sciatica."

1. The review is a new assessment of all matters with which the medical assessment is concerned. 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[28] and Insurance Australia Ltd v Marsh.[29]
2. We adopt the examination findings of Medical Assessor Dixon supplemented by the following further reasons.

1. There is contemporaneous evidence in September 2020 of low back pain following the claimant's release from hospital for his serious injuries. The insurer's submissions of a significant delayed onset of lumbar spine pain lacked merit.
2. We accept the claimant's account of an absence of pre-accident low back pain. We also accept the claimant's account of an absence of explanation of any other cause for the disc herniation at L4/5.
3. An MRI scan is substantially more accurate in identifying discal pathology than a CT scan and the differences in the radiologist interpretation of the scans is likely due to the differences in quality of the scans.
4. A summary of the severe nature of the initial left injuries and surgical procedures is set out in the reasons of initial Medical Assessor and contained earlier our reasons.[30] We adopt that summary as part of our reasons.
5. The motor accident was of a serious nature and, considering the onset of low back pain, is the probable cause for disc injury in the lower back. Another factor supporting this conclusion is that the claimant's relatively young age suggests a herniated disc is unlikely in the absence of trauma. As we noted, no other causes for the herniated disc are apparent given the claimant's age.
6. Consistent with the severity of the left leg injuries and various surgeries, we accept that the claimant suffered from a prolonged altered gait in the left leg. That altered gait places bio-mechanical stresses on the low back. Those stresses on an already susceptible disc are the probable explanation for the original disc injury herniating and protruding against the L5 nerve root and producing referred leg symptoms in 2022.
7. For these reasons we otherwise agree with Dr Singh's explanation for the likely delayed onset of sciatic pain in 2022.

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

1. 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.[31] 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.
2. The injuries caused by the motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[32] That case considered the words "whether any such treatment relates to the injury caused by the motor accident" where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
3. Our reasons contained above under injury show that the motor accident caused significant injuries and discal injury at the L4/5 level which herniated over time due to the bio-mechanical forces from the significantly altered gait. The surgery is required to relieve the pressure on the L4/5 left nerve root.
4. Accordingly, we are satisfied that proposed treatment relates to the injury caused by the motor accident.

1. Mr Mughal 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".
2. When discussing the meaning of "reasonably necessary" under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[33] Grove J stated:[34]

"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.

1. 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."
2. Similar observations have been subsequently made by the Court of Appeal on the meaning of "reasonably necessary" under other legislation.[35]
3. Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[36] 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.

1. 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".
2. The words "in the circumstances" in the context of whether the treatment is "reasonable and necessary" must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment "provided or to be provided to the claimant".
3. 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".
4. Our conclusion on this issue is largely dependent on the recent examination findings by Medical Assessor Dixon. Those findings are consistent with the findings on the MRI scan showing the L4/5 disc impinging on the left L5 nerve root. These findings differ from some of the other doctors such as the original Medical Assessor. We cannot explain different examination findings on sciatica by other practitioners at different times. Their findings may be wrong reflecting different experts. They may be explained on the basis that the nerve root impingement can swell due and symptoms do vary over time. However, we rely on the findings of Medical Assessor Dixon whose precise examination findings show sciatica in the left L5 nerve root.
5. The proposed surgery is appropriate to treat the sciatica symptoms and is otherwise a well-recognised treatment by the medical profession for this condition.
6. The discectomy is a reasonably straight forward procedure with minimal if any possible complications. The probability and likelihood of the effectiveness of the procedure in treating the impingement on the left nerve root is extremely high. The possibility of complications from this procedure is extremely low.
7. The claimant has undergone various alternative and low-cost treatment options. Surgery is necessary as the claimant has undergone conservative treatment which has been unsuccessful.
8. The total cost of the surgery and related necessary post-operative procedures such as hospitalisation and subsequent physiotherapy is in the order of $30,000. However, the failure to operate will cause nerve damage on the left L5 nerve root.
9. For these reasons we are satisfied that the proposed surgery is reasonable and necessary.

1. For these reasons the Panel concludes the medical assessment certificate is revoked. The new certificate is attached at the commencement of these Reasons.

[8] See s 3B(2) of the Civil Liability Act 2002.

[9] [2021] NSWSC 13 (Raina) at [65].

[13] [2015] NSWSC 620 (Ural).

[28] [2021] NSWCA 287 at [40], [41] and [45].

[29] [2022] NSWCA 31 at [11], [21] and [64].

[31] [2019] NSWCA 324.

[32] [2018] NSWSC 1710 at [29] (Phillips).

[33] [2003] NSWCA 52 (Clampett).

[34] Clampett at [22]-[23], Meagher & Santow JJA agreeing.

[35] 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].

[36] See Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88].