REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - CAUSATION

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

1. The Review Panel confirms the certificate dated 18 September 2024 relating to the injury cause by the motor accident on 28 March 2021.

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - REASONABLE AND NECESSARY

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

1. The Review Panel confirms the certificate dated 18 September 2024 relating to the injury caused by the motor accident on 6 August 2021.

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - REASONABLE AND NECESSARY

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

1. The Review Panel revokes the certificate dated 18 September 2024 and issues a new certificate determining that:

(a) the following treatment care:

• total disc replacement at two levels, C4/C5 and C5/C6

REVIEW PANEL ASSESSMENT OF TREATMENT OR CARE - IMPROVING RECOVERY

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

1. The Review Panel revokes the certificate dated 18 September 2024 and issues a new certificate determining that:

(a) the following treatment or care:

• total disc replacement at two levels, C4/C5 and C5/C6

1. The subject motor accident occurred on 28 March 2021 on Parramatta Road at Lidcombe. The claimant was the seat-belted driver of her vehicle which was stationary behind the vehicle in front of it that was waiting to turn right into Delhi Street. The claimant's vehicle was rear-ended by the insured vehicle which in turn was impacted by another vehicle behind it. That impact caused the insured vehicle to impact the claimant's vehicle a second time. The claimant's vehicle did not impact the car in front of it.
2. The claimant remained in her vehicle after the incident. The claimant was helped out of her car after another vehicle had been removed. Ambulance and Police Officers attended. The claimant was taken to hospital for assessment.
3. The claimant says that she suffered injuries to the following body parts in the subject (first) accident:

(a) cervical spine;

(b) lumbar spine;

(c) both shoulders;

(d) chest;

(e) buttocks, and

(f) both legs.

The claimant says that she suffers from a number of consequential disabilities and impairments.

1. The claimant was involved in a second motor accident in August 2021. She was parked in the street in front of her store. The car parked in front reversed and struck the claimant's vehicle. The claimant was not wearing a seatbelt and her airbags did not deploy. No ambulance came and she did not go to hospital.
2. The claimant says that symptoms in her neck were worsened by the second accident.
3. AAI Limited t/as GIO (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act) in relation to the March 2021 motor accident (the accident). The insurer disputes the claimant has greater than 10% whole person impairment (WPI) as a result of the accident. The parties subsequently resolved the WPI dispute.
4. The claimant's treating neurosurgeon (Professor Di Leva) recommended disc replacements at C4/5 and C5/6 after conservative treatment failed. The insurer declined. The claimant subsequently underwent anterior cervical discectomy and fusion (ACDF), which is a similar procedure.
5. The documentation provided to the Panel does not indicate what involvement the CTP insurer for the second accident has in this claim, if any. It appears from the documentation that the claimant may have been involved in a third motor accident on unknown date in mid-2022 of which no details have been given. The Panel not satisfied that there was a third accident.

(a) the degree of permanent impairment under Schedule 2, cl 2(a) of the Act;

(b) whether any treatment and care relate to an injury caused by the accident under Schedule 2, cl 2(b) of the Act;

(c) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, cl 2(b) of the Act; and

(d) whether treatment or care provided to an injured person will improve the recovery of the injured person under Schedule 2, cl 2(c) of the Act.

1. Medical Assessor Gothelf certified on 18 September 2024 as follows:

The following injuries caused by the motor accident on 28 March 2021 give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

• Cervical spine - strain, aggravation of pre-existing degenerative cervical spine, with C5/C6 disc herniation with a right-sided C6 radiculopathy

The following injuries caused by the motor accident on 28 March 2021 have resolved and do not result in permanent impairment:

• Lumbar spine strain, soft tissue injury
• Right shoulder strain, soft tissue injury
• Left shoulder strain, soft tissue injury
• Chest strain, soft tissue injury
• Buttocks strain, soft tissue injury
• Right leg strain, soft tissue injury
• Left leg strain, soft tissue injury

An assessment of degree of permanent impairment of these injuries is therefore not required.

• Total disc replacement at two levels, C4/C5 and C5/C6

RELATES TO THE INJURY caused by the motor accident on 28 March 2021.

• Total disc replacement at two levels, C4/C5 and C5/C6

IS NOT REASONABLE AND NECESSARY in the circumstances.

• Total disc replacement at two levels, C4/C5 and C5/C6

WILL NOT IMPROVE the recovery of the injured person.

• Total disc replacement at two levels, C4/C5 and C5/C6

DOES NOT RELATE TO THE INJURY caused by the motor accident on 6 August 2021.

1. Before the claimant's re-examination by the Medical Assessors, the parties agreed that the degree of the claimant's whole person impairment, arising from injuries caused by the subject accident, does not exceed the 10% threshold.

1. Medical Assessor Ian Cameron certified on 30 December 2022 as follows:

The following injury caused by the motor accident:

• Cervical spine - soft tissue injury
• Lumbar spine - soft tissue injury

1. Certificates were issued on 11 February 2025 by another Review Panel:[1]

(a) The Review Panel confirms the determination of Medical Assessor Robert Kuru in respect to the cervical spine, dated 31 May 2024, which determines that the injury to the cervical spine is a threshold injury, and

(b) The Review Panel revokes the determination of Medical Assessor Robert Kuru in respect to the left and right shoulders, dated 31 May 2024, and substitutes the determination that the injuries to the left and right shoulders were caused by the accident and were threshold injuries.

1. Medical Assessor Christopher Rikard-Bell certified on 7 March 2023 as follows:

The following injury caused by the motor accident:

is not a MINOR INJURY for the purposes of the Act.

1. The claimant sought a review of Medical Assessor Gothelf's certificate, on the grounds that the medical assessment was incorrect within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relied upon the particulars set out in the application and supporting documentation.
2. The claimant brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
3. The claimant submits there is reasonable cause to suspect that Medical Assessor Gothelf's assessment is incorrect in a material respect for the following reasons:

(a) failure to provide adequate and/or consistent reasons;

(b) failure to engage with the evidence;

(c) failure to adhere to the provisions of the Motor Accident Permanent Impairment Guidelines (Guidelines), and

(d) failure to adhere to the test set out in Nguyen v The Motor Accidents Authority of NSW [2011] NSWSC 351.

• The claimant noted that, in coming to his conclusion that the proposed cervical spine surgery may not be reasonable, the Medical Assessor relied upon Professor Di Leva who quoted a 20% - 30% chance of success in reducing the claimant's pain by means of surgery. The claimant submitted that the Medical Assessor simply repeated Professor Di Leva's opinion and did not provide his own view on the chances of pain reduction through the proposed surgery.
• The claimant also submitted that the Medical Assessor appears to have based his decision, that the surgery is not reasonable, on the fact that the claimant smokes cigarettes. The claimant submits that is an irrelevant consideration in determining whether or not treatment is reasonable and necessary. The claimant says that the Medical Assessor did not disclose consideration of the potential benefit, cost and availability of the proposed treatment. The claimant says that the risk must be a risk of not obtaining a benefit when weighing up the reasonableness of the surgery, as opposed to an unrelated risk, and that was not disclosed as part of the Medical Assessor's consideration. Accordingly, so the claimant submits, the Medical Assessor did not comply with the requirement to disclose his actual path of reasoning.

• The claimant submitted that the Medical Assessor failed to consider Professor Di Leva's original referral dated 23 December 2022 which was included in the claimant's application bundle. The claimant notes that Professor Di Leva originally assessed a 95% chance of pain reduction through surgery, whereas that reduced to a 20% - 30% chance of pain reduction by the date of Professor Di Leva's subsequent report dated 7 March 2024, upon which the Medical Assessor relied. The claimant says that Professor Di Leva's original assessment was crucial to the Medical Assessor's decision on whether the surgery is reasonable and necessary, especially where the Medical Assessor has taken Professor Di Leva's opinion on prognosis (albeit out of context), without forming his own opinion on the subject.

• The claimant notes that the Medical Assessor stated, in considering whether the surgery is necessary, as follows:

"The surgery is an elective procedure. Ms Ola has other option of proceeding with surgery or proceeding with alternative treatments....... The procedure is not "necessary" as there alternative treatments to consider."

The claimant says that is indirect conflict with the Medical Assessor's earlier statement that the treatment proposed is reasonable because alternative treatments have been tried without adequate relief of symptoms.

• The claimant relied upon the Nguyen principle in submitting as follows:

"The Assessor has found a reduced range of movement in both shoulders and has determined that the reduction is a consequence of the cervical spine injury. The cervical spine injury was accepted by the Assessor to have been caused by the subject accident. The Assessor has fallen into error by not including the claimant's shoulder movements in his WPI determination.

• The claimant submitted that the Medical Assessor has not provided adequate reasons in the determining that the claimant does not satisfy the criteria for radiculopathy under the Guidelines. The claimant says that the Medical Assessor failed to reference Professor Di Leva's opinion on the claimant's right other limb weakness.

1. The claimant's review application was opposed by the insurer on various grounds. It is not necessary to summarise the insurer's submissions in detail as they were not accepted by the President's delegate. The insurer noted that the claimant was involved in the motor accidents on 28 March 2021 and 6 August 2021 in respect of which CTP claims had been lodged. The insurer further noted the claimant was involved in another motor accident on an unknown date in 2022 of which no particulars have been given. Briefly, the insurer submitted as follows:

(a) The claimant did not provide any submissions as to the basis on which it was suggested the cervical surgery was required as a result of the accidents on

28 March 2021 and 6 August 2021, in circumstances where she had been involved in three separate accidents, and radiological imaging revealed only degenerative pathology;

(b) The insurer disputes the claimant's suggestion that the Medical Assessor did not properly engage with the medical evidence. Particulars are given in support of that submission;

(c) The claimant has not made any submissions regarding why the earlier report of Professor Di Leva would have been relevant to the medical assessment. The insurer submitted that the Medical Assessor was entitled to determine how much weight to give all evidence, and Professor Di Leva's report dated 7 March 2024 which (so the insurer submits) supersedes his earlier report dated

30 September 2022;

(d) The insurer submitted that the relevance of smoking was a medical question which was considered and determined by the Medical Assessor who was in agreement with the claimant's treating health practitioner Professor Di Leva;

(e) The insurer submits there could be no basis to suspect error in the medical assessment by reason of the Medical Assessor's forming an opinion consistent with the claimant's treating specialist Professor Di Leva;

(f) The insurer submitted that the Medical Assessor undertook the exercise of weighing the potential benefits against potential adverse effects of the proposed surgery in forming his opinion that it was reasonable but not necessary, and

(g) In relation to the claimant's suggestion of error in respect of assessment of the shoulder, the insurer submitted it is clear from a reading of Medical Assessor Gothelf's certificate that he was not satisfied the claimant had whole person impairment from her shoulders as a result of the accident, consistent with the complete lack of evidence of any impairment provided by the claimant with her primary application.

1. President's delegate, Ratula Gupta, issued a Determination of an Application for Review of a Medical Assessment on 5 December 2024 which stated the satisfaction of the President's delegate that there is reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the claimant's submission that there is an inconsistency within the Medical Assessor's reasons for finding that the referred treatment was necessary in the circumstances.
2. Accordingly, the review application was accepted and was referred to the Panel, which is to reassess all of the injuries referred to Medical Assessor Gothelf, unless the parties otherwise agree.

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (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.[2]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[3]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[4]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.

This, therefore, involves a medical decision and non-medical informed judgment.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. See Briggs v IAG Limited t/as NRMA Limited.[5] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[6] wherein his Honour Justice Wright stated at (35):

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

(2) a review of all relevant records available at the assessment;

(3) a comprehensive description of the injured person's current symptoms;

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant is required to establish that the treatment and care is both "reasonable and necessary". This test differs from the worker's compensation legislation which requires a worker to establish that the treatment and care is "reasonably necessary". There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment and care 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,[7] Grove J stated:[8]

"22. I return to the expression 'reasonably necessary' in s 60. Dictionaries stipulate that 'necessary' as relevant definition as 'indispensable, requisite, needful, that cannot be done without' - (shorter Oxford English Dictionary, 3rd Edition) 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 may be 'reasonably necessary', there is these statutory obligations 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 made subsequently by the Court of Appeal on the meaning of "reasonably necessary" under other legislation.[9]
3. Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker's compensation legislation are well-settled.[10] They include:

(a) the appropriateness of particular treatments;

(b) the availability of alternative treatments;

(c) the costs 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 worker's compensation legislation, we adopt it in so far 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 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".

1. The claimant relied upon the following material which the Panel has considered:

The claimant relies on previously served medical evidence and reserves the right to rely on any new material pursuant to cl 7.213 of the Motor Accident Guidelines.

Report to GP (Dr Adam Ziade) by Professor Antonio Di Leva

"Today I had the pleasure of seeing Jodi-Maree Ola, accompanied by her mother. As you know, I already saw the patient on the 30th of September in regard to her post-traumatic severe neck pain and arm pain, which at that time was more to the right side, and cervicogenic headache.

I gave her a referral for a C5/C6 CT-guided injection, which was performed, but unfortunately did not give any benefit at all. Rather, it made her pain even worse. Indeed, the patient referred that she has shooting pain in the right arm, with a new pain also to the left, her headache is getting worse, as well as nausea that is in treatment now with Ondansetron.

At the last consultation, we already prospected that in case of failure of conservative treatment, a potential surgical indication would be proposed.

I reviewed her MRI again, performed at Alfred Imaging on the 12th of September, showing severe desmopathy at C4/C5 and C5/C6, with potential nerve root impingement of both the nerve roots, especially the right C6.

In conclusion, the patient has a post-traumatic C4/C5, C5/C6 discopathy with disc protrusion and radicular compression, causing severe neck pain, headache and radicular pain in both arms. The Spurling manoeuvre today was still intensely positive, especially to the right side. The patient's quality of life is severely affected by this pain.

We discussed the potential surgical options, which included anterior cervical discectomy and fusion at two levels, or a total disc replacement.

Considering her age and her good range of motion of the neck, I would be more keen to propose a total disc replacement at two levels, C4/C5 and C5/C6.

We discussed the pros and cons, indication and potential complications, including a potential lack of benefit in the range of 5% or potential complications, which include but are not limited to infections, bleeding, major or minor neurological deficit which can be transient or permanent, necessity to have to perform further surgery, dysphagia, dysphonia, injuries to the neurovascular structure of the neck, etc.

The patient is very keen to undergo surgery now, as she has maximised all the conservative treatment. She signed an Informed Consent for Surgery. At this stage, I am asking approval from the insurance for a two level disc replacement in the cervical spine....."

Letter by Professor Di Leva to the insurer's lawyers

Professor Di Leva responded to a request for particulars by the insurer's lawyers and answered their various questions relating to the need for surgery.

Certificate and Reasons of Medical Assessor Christopher Rikard-Bell

Letter by Dr Shaun Watson, neurologist, to Dr Trudi Richmond

Clinical notes of Dr H Napper of St John of God Hospital

Letter to GP (Dr Adam Ziade) by Professor Antonio Di Leva

"..... The patient has been known to me for a long time, in discussion regarding her cervical operation, rejected by the insurance. She will go ahead with the operation in the private environment.

Although I initially proposed a total disc replacement in C4/C5 and C5/C6, in the meantime, she has become so much worse, that I believe it would be more proficient to do a fusion, as explained in my previous letter....."

"After a lack of benefit from conservative treatment, she finally underwent a successful and uncomplicated operation of a C4/C5 and C5/C6 anterior cervical discectomy and fusion, performed on the 17th of June. The operation was uncomplicated, and the patient had a very good benefit in terms of pain....."

1. The insurer relied upon the following material which the Panel has considered:

Insurer's submissions regarding the treatment dispute

These documents are not relevant for the Panel's consideration as they relate to the WPI dispute that has been resolved by the parties.

Report of Dr Shaun Watson, neurologist, to Dr Richmond

Report relating to Dr Watson's treatment investigation and treatment of the claimant's bilateral neck pain, vertigo and vestibular migraine.

Report by Professor Di Leva to the claimant's lawyers

"On consultation, when I saw her for the first time in September 2022, there was a limited range of motion of the neck, especially in rotation, reproducing the right upper limb pain.

The Spurling manoeuvre was positive for a right C6 nerve root, with subtle weakness in the right upper limb, which most likely was functional in relation to her pain, although there was no objective weakness. She underwent MRI on 24 August 2022 showing degenerative changes in the cervical spine with annular disc bulge at C5/C6 with potential compression of the exiting C6 nerve root. I believe that she was symptomatic from the disc protrusion, most likely post-traumatic, as she did not have pain before the trauma.

We discussed the potential option for surgery, but of course, surgery must always be the last option, if they are not neurological deficits.

The patient was placed on the surgical list at that time, but I have not seen her since

23 December 2022, considering that she was on the surgical list for a C4/C5, C5/C6 anterior cervical discectomy and fusion, which was pending insurance approval, which was rejected.

The patient has chronic neuropathic pain as a consequence of the accident and the lack of proper surgical treatment proposed more than twelve months ago.

The prognosis is related to the future treatment, but it has to be emphasised that even surgical treatment now will deal with the biomechanical reason for her pain, but less successfully on the neuropathic, chronic nature of the pain itself. Indeed, the chance to reduce or even cancel the pain now is lower than twelve months ago, considering that chronic neuropathic pain is more difficult to be treated.

In terms of prognosis, the patient has a 20-30% chance to reduce her pain by means of surgery and much lower with continuing conservative treatment, which has been shown to fail in the past."

1. The report of the Medical Assessors is as follows:

Ms Ola attended the medical suites at PIC on December 3, 2025. She was accompanied by a male friend.

Ms Ola stated that she had been in good health prior to the accident. Her mother was running a fashion business called Jodi - Maree fashions which she also worked in. She was also working part-time as a restaurant manager. They closed the business after mother had some minor strokes but she reopened by herself at the time of the first accident.

There was a past history of a splenectomy when she was an infant and thyroidectomy 10 years ago. She states that there were no previous injuries to those assessed today.

History of motor accidents and subsequent treatment

The first accident was on 28 March 2021. She was the driver and stationary when hit from the rear. There was no collision with the car in front but a secondary collision by the car behind her. She was wearing a seatbelt at the time but airbags were not deployed. Police and ambulance attended the scene of the accident. She states that at the time she had neck pain radiating to the low back and felt shocked. She was taken to Canterbury Hospital and later discharged.

There was a 2nd accident on 6 August 2021 when she was stationary in front of her store when another car reversed into the front of her car. She states that this accident increased neck pain and she then drove home.

At the time of the first accident her GP was away and she consulted the medical centre where she was prescribed analgesics and later attended a chiropractor. Due to increased pain, her GP referred her to Dr Richmond, pain specialist who organised injections of the cervical spine with some benefit. She was also referred to a specialist physiotherapist for the neck pain. On 30 September 2022, she consulted a neurosurgeon Dr Leva who later recommended a cervical fusion. This was undertaken on 17 June 2025 with fusion at C4/5 and C5/6. She states that this procedure was funded by her solicitor and not the insurer.

Ms Ola was also referred to a shoulder specialist, Dr Raniga who ordered an MRI of the right shoulder and later recommended an arthroscopic repair which was denied by the insurance company.

There have been no further injuries sustained since the accident.

Ms Ola states that she has a constant burning pain associated with pins and needles over the posterior neck. There is a sharp pain in the upper right arm which increases with shoulder movement and numbness of the right thumb in the radial side of the right index finger. There was also some numbness and pain over the radial side of the right forearm. The left arm is asymptomatic. She is prone to migraines which are mainly frontal and treated with Sandomigran. The lumbar pain has mainly settled but there is a constant pain in the right shoulder and slightly in the left shoulder.

She has not driven since the accident and states that since the cervical surgery there has been a 30% decrease in neck and arm pain.

At present, Ms Ola is prescribed Palexia SR 150 mg twice a day, Palexia IR 50 mg One-A-Day, melatonin 2 mg at night, Serc One-A-Day, sertraline 50 mg morning, Lyrica 75 mg at night, Omeprazole 20 mg a day, ondansetron One-A-Day, Celebrex One-A-Day and a statin for hypercholesterolaemia.

Ms Ola consults a psychiatrist for PTSD and is due to consult Dr Richmond tomorrow with possibly repeating injections in the cervical spine. She plans to have a follow-up with the shoulder surgeon.

Ms Ola walked into the rooms with a normal gait and stated that she is right-handed although she tends to now use the left hand more. The height was measured at 170 cm and weight 79 kg. She was very teary when talking about the persistent pain she has and the lack of treatment provided by the insurance company.

On testing range of movement, flexion was 30% of expected range in extension was 20% of expected range. Side bending and rotation in range of 20% to the right and 30% of the left.

On inspection there is a horizontal scar over the anterior neck which is quite red in colour and not fully healed as it is only 5 months since the operation.

On palpation there was generalised tenderness with some guarding over the trapezius muscles.

On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent. The circumference of the upper arms 30 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 26 cm bilaterally (5 cm above the olecranon process). On testing for sensation, there was decreased sensation to light touch over the right thumb and the radial side of the right index finger. Otherwise, were no sensory changes noted in the upper limbs.

On palpation there was tenderness over the right acromioclavicular joint and bicipital groove. Active measurements were undertaking using a goniometer and repeated.

This review panel is limited to treatment dispute which was listed as a total disc replacement at 2 levels C4/5 and C5/6. WPI has apparently been resolved with mutual agreement, the day prior to this examination.

There has been a development of chronic pain in the cervical spine and right upper limb which mainly presented after the first accident on 28 March 2021. There may have been a temporary exacerbation after the 2nd accident on 6 August 2021 but with no long-term changes due to the 2nd accident. There was no 3rd accident. Mrs Ola was emphatic about this. She knew the treating specialist had mistakenly written 3 accidents but she thought that this was mix-up due to a double hit in the first MVA.

The treating neurosurgeon Dr Leva documented the pain associated with paraesthesia including the right thumb with an investigating MRI reporting a disc bulge at C5/6 with potential compression of the existing C6 nerve root. A CT guided right C6 nerve root injection was prescribed with little benefit and follow-up of radiofrequency injections of physiotherapy but pain persisted. The treating neurosurgeon formed the opinion that due to failure of conservative treatment surgery in the form of an anterior cervical discectomy and fusion at C4/5 and C5/6 was recommended. He did quote saying that she had a 20 - 30% chance of reduction in pain by means of the surgery.

Post operatively, Dr Leva considered that there was a good result of surgery and that due to chronic neuropathic pain may take some time for more improvement. He also stated that if the neuropathic pain got worse spinal cord stimulation might be an option.

It is noted that the claimant actually underwent an anterior cervical discectomy and fusion (ACDF), which is similar to a total disc replacement, at C4/C5 and C5/C6.

In my opinion I consider that the cervical fusion at C4/5 and C5/6 is related to the injury in the subject accident on 28 March 2021. I think was reasonable and necessary and did improve recovery, but we can discuss this at the next TC."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[11] It is not the role of the Panel to correct error in the decision of the original Medical Assessor.
2. The Panel is not required to choose between competing medical opinions and is required to form its own opinions.[12] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another.
3. The Panel met on 29 April 2025 to consider the following:

(a) the nature of the dispute and the matters in issue;

(b) whether any additional documents are required, and

(c) whether a re-examination is necessary.

1. The Panel reconvened on 8 July 2025 and again on 7 December 2025 to consider its findings and to finalise its decision.
2. The Panel finds, as a matter of factual determination and as a matter of factual non-medical judgment, the motor accident could have caused, and did cause, the claimant to suffer a cervical spine injury, for the reasons stated in the examination report. At the very least, the subject accident was a material contributing cause to the claimant's cervical spine injury, or aggravation of underlaying degenerative pathology.
3. The Panel rejects the insurer's submission that the proposed surgery should be found to be not reasonable nor necessary, by reason of the increased chance of an adverse outcome (as opined by Professor Di Leva in his most recent report), which is the result of the insurer's initial declinature.

1. For the above reasons, the Panel confirms the certificate dated 18 September 2024 that the total disc replacement at two levels, C4/C5 and C5/C6 relates to the injury caused by the motor accident on 28 March 2021.
2. For the above reasons, the Panel confirms the certificate dated 18 September 2024 that the total disc replacement at two levels, C4/C5 and C5/C6, does not relate to the injury caused by the motor accident on 6 August 2021.
3. For the above reasons, the Panel revokes the certificate dated 18 September 2024 as to treatment that is reasonable and necessary in the circumstances. The new certificate appears at the commencement of these reasons.
4. For the above reasons, the Panel revokes the certificate dated 18 September 2024 as to treatment that will improve the recovery of the injured person. The new certificate appears at the commencement of these reasons.

[1] Jodi-Maree Ola v AAI Limited t/as GIO [2025] NSWPICMP 76

[5] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[6] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

[7] [2003] NSWCA 52.

[8] Clampett at (22) - (23), Meagher and Santow JJA agreeing.

[9] See ING Bank (Australia) Limited v O'Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).

[10] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88) (Diab).

[12] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.