VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z261/2018 & Z433/2020
	
CATCHWORDS	
Transport Accident Act 1986 ss60(2), 77—Motorbike accident in February 2012—review of four decisions between 2016 and 2023 refusing claims for payment for treatment of six injuries or conditions—-causation.	

APPLICANT	Ninette Prospero	
RESPONDENT	Transport Accident Commission	
WHERE HELD	Melbourne	
BEFORE	Senior Member J. Smithers	
HEARING TYPE	Hearing	
DATE OF HEARING	27, 28, 29 and 30 March 2023	
DATE OF ORDER	11 October 2023	
CITATION	Prospero v Transport Accident Commission (Review and Regulation) [2023] VCAT 1143	

Order

1	The Tribunal affirms the four decisions of the respondent, refusing to pay for treatment for the injuries or conditions the subject of these reviews.

J. Smithers
Senior Member			

APPEARANCES:		
For the Applicant 	In person	
For the Respondent	Ms E Goldstein of counsel	

Reasons
1	On Thursday 9 February 2012 at about 3.40 pm, Ms Ninette Prospero was waiting to make a right-hand turn, northbound, from Beach Road into Dendy Street, Brighton, on her large Harley-Davidson motorbike. 
2	The light changed to amber, and Ms Prospero was either about to, or had begun, to turn into Dendy St. There was a white Mitsubshi Express delivery van travelling in the opposite direction, southbound, through the intersection. The driver saw Ms Prospero, braked hard, and came to a stop. But there was a collision (the accident). The front right side of the van hit the motorbike and knocked it over. Ms Prospero fell onto her right side, under the motorbike. 
3	By coincidence, there was a police car in the queue of traffic behind Ms Prospero when the accident occurred. It appears the police did not actually witness the collision, however. 
4	The police report indicates that they assisted all parties in the exchange of details. It stated the collision occurred ‘at relatively low speed’. Ms Prospero said it occurred at a higher speed. 
5	However, no ambulance was called, and after Ms Prospero’s motorbike was taken away by a tow truck, a friend came and collected her from the tow truck depot. 
6	Over the next several years, Ms Prospero was treated for injuries to her cervical spine, both shoulders and right knee. The Transport Accident Commission (TAC) accepted liability for payment for treatment for these injuries as a result of the accident. This was on the basis that it accepted the treatment comprised reasonable costs of medical services received because of a transport accident, under the Transport Accident Act 1986 (Vic) (the Act).
7	However, Ms Prospero claims that TAC is also liable to pay for other treatments, which TAC does not accept. This is a review of TAC’s decisions to refuse payment for treatment of the following conditions (or alleged conditions):
•	Acquired brain injury (ABI)- TAC decision of 24 June 2016. The TAC says the evidence indicates that Ms Prospero did not suffer a head strike in the accident, and does not have an ABI. 
•	Pudendal neuralgia/ hernia conditions- TAC decision of 27 August 2019. The TAC acknowledges that Ms Prospero likely does have pudendal neuralgia, but says it was not caused by the accident. Ms Prospero has had procedures to treat both a left and right inguinal hernia. 
•	Obturator nerve injury/ right hip condition- TAC decision of 2 August 2022. TAC says there is no evidence of dysfunction of the obturator nerve, as that nerve is mainly involved with the motor function of the leg, not the pelvic or hip area. TAC also says any injury to the hip from the accident resolved many years ago.
•	Lumbar spine- TAC decision of 13 February 2023. This was a decision to refuse to fund radiofrequency ablation. Ms Prospero’s position is that this treatment is to deal with her pudendal neuralgia and pelvic pain. She acknowledges there is in fact no issue concerning the lumbar spine.
8	Ms Prospero seeks approval for funding of a number of treatments as a result of the brain injury she says she suffered in the accident. Although described in different ways by Ms Prospero, the alleged brain injury is referred to as ‘ABI’ in this decision, since that is how the relevant experts described it. 
9	In respect of the other (non-ABI) conditions, Ms Prospero said in the hearing she seeks that TAC fund radiofrequency ablation at least as often as every 12 months, as well as other treatment, described as involving an injection, as requested by Dr Scott Masters. He is described as practising in ‘musculoskeletal medicine’ at the Caloundra Medical Centre, Queensland.
10	Four Tribunal Books, together totalling 1,118 pages were provided. These primarily comprised Ms Prospero’s medical records, reports, assessments and related correspondence, from 2008 to 2023.
11	The TAC also provided chronologies during the interlocutory stage. As well, it provided detailed submissions in the months prior to the hearing. These were dated 16 December 2022 (concerning ABI and pudendal neuralgia) and 23 March 2023 (concerning the other claims). They were to assist Ms Prospero, who represented herself, by providing some structure for the analysis of the issues.
12	Evidence was given orally by the following witnesses in support of Ms Prospero’s application: 
•	Ms Prospero herself.
•	Ms Penelope Littlewood, physiotherapist, Bentleigh.
•	Dr Thierry Vancaille, gynaecologist and pain medicine specialist, Sydney.
•	Mrs Sarah Carr, the driver of the car which collided with Ms Prospero.
•	Professor Kate Moore, obstetrician and gynaecologist, Sydney.
13	Evidence was given orally by the following witnesses called by the TAC: 
•	Dr Myron Rogers, neurosurgeon, Melbourne.
•	Associate Professor Richard Stark, urological surgeon, Melbourne.
•	Dr Keith Johnson, treating neuropsychiatrist, Wollongong. 
14	Final submissions were made orally on behalf of TAC at the conclusion of the hearing. A daily transcript was prepared. Ms Prospero had the benefit of this, plus the transcript references in TAC’s final submissions (which are recorded in the transcript of the final day of the hearing, 30 March 2023), for the purpose of preparing her Final Submissions. These were dated 11 April 2023, and provided in writing.
15	Ms Prospero’s submissions included reference to s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Section 78 refers to a party conducting a proceeding in a way which unnecessarily disadvantages another party. However, these submissions in reality amounted to complaints about the investigation process, the conduct of some medical practitioners, and contentions on the merits of her applications. I have dealt with them where relevant as part of my analysis of the circumstances generally.
16	During the hearing, Ms Prospero also made complaints about her former solicitors, things which occurred in other legal proceedings (such as medical negligence claims and her common law claim) and the NDIS. Those complaints are beyond the scope of these reviews.
17	It is clear Ms Prospero has a very long and complex medical and psychosocial history, and this has presented her with many challenges during her life. One example is the unsuccessful surgery in August 2014, for the insertion of a vaginal mesh, which subsequently had to be reversed in August 2016. Despite this, she maintained a generally positive, frank and bright demeanour in the hearing, as she grappled with the difficult task of putting her case and coming to grips with the large volume of material in the four Tribunal Books. 
The statutory framework 
18	These are reviews on the merits of the TAC’s decisions to deny liability for the conditions the subject of the four decisions above. They are brought under s 77 of the Act. Under that provision, and s 51 of the VCAT Act, the Tribunal’s task is to stand in TAC’s shoes and make the correct or preferable decision on the applications.
19	The decisions being reviewed were made under s 60(2) of the Act. This relevantly provides that TAC is liable to pay the reasonable costs of medical, hospital, nursing, disability and rehabilitation services received because of the transport accident, as compensation, to a person who is injured as a result of that accident.
20	Section 3(c) relevantly provides that a reference to an injury as a result of a transport accident is a reference to an injury directly caused by the driving of a motor vehicle.
21	What is required is that the injury be ‘directly caused by’ the transport accident. This test of causation was explained by Ashley J in Gennimatas v TAC [2002] VSC 552 at [45]: 
In the end, the authorities are not at odds with my conclusion that it is sufficient that a transport accident be a cause of injury as determined by the application of common law principle; and that the incapacitating consequences of injury are to be similarly determined.  Those conclusions are entirely compatible with the proposition that it is injury caused by the transport accident which is to be compensated, and the impairment caused thereby which to be determined.  [underlining added]
22	In Sahin v Transport Accident Commission, the Tribunal said: 
That state of satisfaction may be reached where the evidence before the Tribunal is such as to justify an inference of a probable connection between the transport accident and the condition.  Any inference must be based on facts established by admissible evidence.  The process of reasoning must constitute a valid inference as distinct from speculation or guesswork.  The totality of the evidence may be considered together in order to ascertain the weight of the evidence as a whole.
23	Neither party bears a burden of proof. The approach to be taken in weighing up the evidence of causation was described in Golem v Transport Accident Commission [2002] VCAT 319, in which it was held that:
What is required of the Tribunal, placing itself in the shoes of the decision maker, is a state of satisfaction that the decision at which it arrives is the correct decision on the basis of all material before it… the bottom line is that the authorities establish that, in proceedings such as this before a Tribunal such as this and pursuant to legislation such as the Victorian Civil & Administrative Tribunal Act 1998, no burden or onus of proof in the curial sense exists. [underlining added]
Background
24	I set out below a description of the accident, and a summary of the pre and post accident health treatments and assessments Ms Prospero has undergone, relevant to the issues in this case. More detail is set out as appropriate, where particular issues are dealt with in the analysis of the individual claims which follows.
Pre-accident circumstances and treatments
25	Ms Prospero was born on 15 December 1964. She is 58 years old. 
26	Ms Prospero has quite an involved medical and personal history, including family, social and psychological issues (including homelessness at times and custody difficulties with her children) as well as dyslexia, which has prevented her from obtaining sustained employment.
27	She has five adult children, who live in various eastern Australian States. She said that over the years prior to the accident, she was physically active, engaging in ballroom dancing and extended motorbike rides, as well as other physical activities. 
28	In 2005, she had an operation in Cairns to repair a bladder prolapse, which was causing incontinence. 
29	In her final submissions, Ms Prospero referred to another motorcycle accident in 2010. She described this as follows: ‘…car leaving driveway t-boned, shin hit bumper, head hit front on onto bonnet and catapulted hitting head into Street Speed sign. Police and ambulance were called.’ Concerning that accident, the IME orthopaedic surgeon Mr Rodney Simm, in his report of 11 June 2013, simply said: ‘She was in another motorcycle accident in 2010. She suffered a grazed leg and recovered fully’.
30	Shortly prior to the accident on 9 February 2012, she was in the process of making an application for a Disability Support Pension (DSP), through her GP in Bentleigh, Dr Vincent Griffith. This was ‘on basis of depressive illness, has been treated with medications and counselling since age of 14’.
The accident
31	The police report of the accident on 9 February 2012 stated that Ms Prospero was hit by the other vehicle at ‘relatively low speed’, knocking her from her motorcycle. The report then said:
Police have also been informed by both parties that there are no injuries. 
Very minor damage to both vehicles. 
No independent witnesses identified at the scene, so police were unable to determine liability.
32	Of course, the Tribunal’s task is not to determine whose fault the collision was. The only relevance of the evidence about the collision is that relating to the force of the impact, as this is potentially relevant to the question of what injuries Ms Prospero did and did not suffer from the accident. 
33	Ms Prospero has stated consistently that she did not lose consciousness in the accident. There is no suggestion to the contrary in any of the extensive medical and evidentiary material. I accept that she did not lose consciousness. 
34	In terms of the details of the accident itself, Ms Prospero said she was stationary at the lights when hit, that the other driver was travelling in excess of 60 kmph, ran a red light, was looking from side to side before she saw the motorbike, veered out of her lane, and only came to a halt some distance beyond the intersection, after hitting the front wheel of the motorbike.  
35	Ms Prospero reported straining to try to hold onto the handle bars of her 370 kilogram motorbike to prevent herself from being catapulted into the air or into the cars that were queued up behind her. She said that caused ‘overstretch strain’ to various parts of her body including her groin.
36	She said she went down with the bike and was slammed on her right side onto the road. She said her helmet ‘catapulted and hit the road’. She then slid along the road backwards, for approximately five meters, with the bike going under the front wheel of the van.
37	She said she suffered injury to the ankle, knee and head from being slammed on the road at speed, with her bike pinning her foot.
38	Ms Prospero said she was dizzy, and fell backwards twice, being helped up by police. 
39	The driver of the van, Ms Sarah Carr, made a statement dated 7 September 2016. She also gave evidence in this hearing. She made concessions where appropriate, including in light of the fact that 11 years have passed since then. I am satisfied she was a witness of truth. 
40	Ms Carr’s evidence was to the following effect. Ms Prospero turned right in front of her (that is, across her path). She (Ms Carr) braked as hard as she could. By the time of impact, the van had slowed to a very low speed. The van came to a halt in the intersection, not beyond it. There was another car travelling in the left lane alongside her, which also continued through the intersection. 
41	Ms Carr said the van had a black plastic bar at the front. The van was not damaged at all, no repairs were required. She described the contact as the van ‘tapping’ the motorbike.
42	Ms Carr said she immediately got out of the van to see if Ms Prospero was alright. Ms Prospero ‘managed to get herself and the bike up and then she wheeled it off the side of the road’. She was angry. She didn’t complain of any injuries. She was walking and talking normally. Her main concern was for her motorbike. 
43	In her final submissions, Ms Prospero drew attention to some apparent errors and omissions in the report prepared for TAC about the accident, by the investigators, Maurice Kerrigan & Associates. It stated that no vehicles were towed. This was incorrect, as her motorbike was towed. Whether her motorbike was regularly serviced was not recorded, nor the details of where she was going to, and from, at the time of the accident. These matters do not affect any relevant analysis I need to undertake, however.
44	As indicated, I only need to make findings about the accident to the extent relevant to the question of the nature of the injuries sustained by Ms Prospero. In that regard, I generally prefer the evidence of Ms Carr. Her evidence is more plausible, and fits better with the police report and the circumstances generally. I am satisfied that the accident was, thankfully, a low speed crash. Ms Prospero’s version tended to be exaggerated. It seems implausible that the accident, a head on collision, was as serious as Ms Prospero claims, yet nobody in attendance, in particular the police, called an ambulance.  
45	After the accident, Ms Prospero said she was left sitting on the side of the road not knowing what to do. She said the tow truck arrived and would not let her go home until a friend came to pick her up. She said her friend ‘shouted me dinner just to make sure I was alright’. 
Post-accident circumstances and treatments
2012
46	Ms Prospero did not see a doctor until four days after the accident (on 9 February 2012). She said this was because she was in bed for the intervening period, in pain ‘from head to toe’. On 13 February 2012, she went to her GP, Dr Vincent Griffith. 
47	Dr Griffith’s note of the consultation relevantly states as follows:
…
applying for disability support pension.
on basis of depressive illness, has been treated with medications and counselling since age of 14.
has been unemployed for 2 years.
The patient report Centrelink Medical Certificate was produced. 
support for disability support pension…see certificate. May need further medical paperwork…will return if so.
also MCA on 9/2/12. rider on motor bike and hit by car running a red light. head on fell onto road and bike on top. Waking every hour or so with fear and recall of the impact, full memory of the event, no LOC. Sore R shoulder and upper arm bruised and sore and R hip sore and R ankle bruised and swollen.
48	Ms Prospero said that was not an accurate record. She said in her oral evidence she told Dr Griffith that her head hit the road, and that she had a sore wrist, but he did not record those things.
49	On 16 February 2012, Dr Griffith completed a medical report in support of Ms Prospero’s application for a DSP. Under ‘Diagnosis’, it stated ‘depression’. In relation to ‘Current symptoms’, it stated: 
depressive mood chronic – constant – severe, difficulty with spelling + grammar, concentration, memory, several everyday functioning
‘Current treatment’ comprised ‘Lexapro + regular counselling’. Under ‘Past treatment’ Dr Griffith wrote ‘Since age 14, counselling + intermittent anti-depressants’.
50	In May 2012, Ms Prospero rang TAC to make a claim following the accident. She said she spoke to a TAC representative on the phone for two hours. The TAC representative partially completed her application form, using typed text from the information conveyed over the phone, and sent it to Ms Prospero. In relation to injuries from the accident (item 17), the entry by TAC read: ‘(Disorder of knee)(Right) (Whiplash injury to neck)’. Also, under ‘Learning difficulties or ADHD, the ‘Yes’ box was checked (item 23).
51	Ms Prospero then added, in handwriting: ‘+shoulders’ at item 17. She did not alter the entry at item 23. She also added a notation referring to her being unable to take up an offer to do extra work (which she described as ‘3 days’) due to ‘shoulder and neck’. She signed the form, dated it 31 May 2012, and submitted it to TAC. 
52	Attached was Dr Griffith’s initial medical certificate dated 28 May 2012. This listed the following accident related conditions: 
•	Soft tissue injury Shoulder
•	Soft tissue injury Hip
•	Soft tissue injury upper arm
•	Soft tissue injury ankle
•	Knee injury.
53	In May 2012, Ms Prospero developed severe pain from what was diagnosed as a left inguinal hernia. This was repaired at Sandringham Hospital on 25 July 2012. In his report of 21 January 2013 to Maurice Blackburn, then acting for Ms Prospero, Dr Griffiths said the left hernia condition was not related to the accident.  It was noted the right inguinal canal was sound.
54	On 21 November 2012, Ms Prospero was assessed on TAC’s instructions by the independent medical examiner (IME) Dr Chris Baker, a specialist in occupational medicine. He said her physical injuries were settling down post-accident, with the exception of the right shoulder, which should be accepted as a TAC-related claim. He also identified prior social and psychological issues, and dyslexia, which has hindered her in gaining employment. 
2013
55	On 21 January 2013, Dr Griffith provided a report to Maurice Blackburn. He referred to soft tissue injury, especially to the right side of the neck and right shoulder and to a lesser extent, left shoulder. He also mentioned her long history of depression, and difficulties with coping, reading and learning.
56	On 1 May 2013, Ms Prospero was assessed by the IME Dr Albert Kaplan, psychiatrist, on Maurice Blackburn’s instructions. He identified significant non-physical impacts from the accident. I understand that following this, and other assessments, including by the orthopaedic surgeon, Mr Rodney Simm on 11 June 2013,  3 June 2014 and 4 December 2014, an overall impairment assessment was ultimately made, and Ms Prospero received a statutory impairment payment. 
57	The impairments identified from the accident and the subject of the impairment payment as recorded in the reports of Dr Kaplan and Mr Simm do not include the injuries the subject of these proceedings. 
58	In July 2013, in response to persistent right shoulder pain, Ms Prospero underwent an arthroscopic decompression of the shoulder and removal of the bursa.
59	On 24 September 2013, Dr Janovic, pain clinician, Caufield Hospital, wrote a report to Dr Griffith. This stated that Ms Prospero reported that ‘her helmet sustained damage, so there must have been some trauma to the head’. Dr Janovic concluded that the principal problems arising from the accident were neck and shoulder pain. But he also ‘wondered whether there was also some degree of post-traumatic stress disorder and the possibility of a closed head injury due to her poor concentration and comprehension’.
60	Dr Jancovic’s letter to Dr Griffith said he would be grateful if he could forward any relevant investigations such as MRI of the head or spine. It is not apparent whether such MRI was conducted in 2013/14, however one was done on 20 April 2015 (see below).
2014
61	Ms Prospero was examined by IME, neurologist Dr John Waterson, on 6 February 2014. He was retained by Ms Prospero’s then solicitors, Maurice Blackburn, for the purpose of assessment of her degree of impairment. He referred to the following musculoskeletal injuries sustained in the accident: cervical spine, right shoulder, right hip and knee. Aside from the hip, there was no mention of any injuries the subject of these VCAT proceedings. The same applies to the shorter follow up reports by Dr Waterson of 21 December 2015 and 27 May 2016.
62	On 11 May 2014, a report was produced by Ms Penny Littlewood, physiotherapist. This refers to injuries sustained in the accident to Ms Prospero’s cervical spine, both shoulders and right knee. Ms Littlewood gave oral evidence. Her treatment and report did not mention the injuries the subject of these proceedings. In her oral evidence, she said she could not recall treating Ms Prospero for a hernia, nor for her pelvis or hip.
63	Ms Prospero experienced vaginal pain, and incontinence. On 8 August 2014, she underwent a posterior vaginal repair. This involved the insertion of a sub-urethral sling, or mesh. This was at Monash Medical Centre, Moorabbin. 
2015
64	In January 2015, Ms Prospero moved to the NSW Central South Coast. She began to see a new GP, Dr Anoop Jalota in Warrawong (south of Wollongong). She said in the hearing she was not happy with the medical treatment she had received from the various practitioners who had treated her in Melbourne. 
65	Dr Jalota referred Ms Prospero to Dr Ian Davidson, a specialist in rehabilitation medicine. He saw her on 17 March 2015, and wrote reports to both Dr Jalota and to TAC. This referred to the extensive problems she had experienced, both physical and psychological, prior to, and since, the accident. Dr Davidson concluded Ms Prospero was depressed, and had intrusive reinjury fears (her grandfather had quadriplegia) which were a major barrier to her progress and participation in a rehabilitation program. He requested TAC approval for a progress cervical MRI, and review by a neurosurgeon. 
66	On 30 April 2015, an MRI was conducted on Ms Prospero’s brain. The circumstances in which this occurred are not clear, although TAC said she did have a CT scan of her cervical spine around that time. In any event, the result was: ‘no abnormalities detected’.
67	On 9 November 2015, Dr Jalota wrote a referral to the Illawarra Brain Injury Service (IBIS) requesting an assessment for a possible brain injury from the accident. The referral simply stated: ‘Has been forgetting things and its frustrating her. Not sleeping very well.’
68	On 4 December 2015, Dr Jalota wrote to ‘Advanced Neurological Treatment Services’ requesting that Ms Prospero be assessed for memory loss after her accident in 2012. He indicated she is experiencing memory problems and short-temperedness. He said, ‘Wondering if she could be reviewed for PTSD after her MVA.’
2016
69	On 17 March 2016, in a consultation with Ms Prospero, Dr Jalota recorded her description of the accident, and that she was unhappy that her first doctor and the police ‘didn’t do much for her’. The note concludes: 
Currently getting pain management and physio and the mind to be examined 4 [for] Head impact with the road caused her brain injury
70	On 1 April 2016, Dr Davidson wrote to TAC. The letter (in full) said:
As outlined in my last letter and also previous letters, Ninette has difficulty with concentration and memory but is also identifying now what sounds like poor impulse control and anger management from the time of the accident. I am sure that some of it is just situational but it does raise the possibility that she had a significant head injury at the time and that can only really be sorted out with a battery of neuropsychological testing. 
I understand you are still deciding whether to support her review with a neurologist. I think that it is important, so that her significant fears of reinjury and ongoing damage are hopefully allayed, but whether she sees a neurologist or not, I would encourage you to support her having a neuropsychological assessment, which would help to identify the extent of any impairments and provide us with a framework in order to offer her further support. 
71	On 16 May 2016, a TAC Clinical Panellist, Dr Jan Loewy, neuropsychologist, reviewed the request which had been made by Dr Jalota on 4 December 2015 (with quote for neuropsychological assessment subsequently provided). Dr Loewy concluded that Ms Prospero did not suffer a brain injury in the accident. She noted the police report of a low speed collision, that there was no loss of consciousness, no hospitalisation, no medical attendance for four days, and that her subjective description of having poor memory for past events is an unusual presentation to be associated with an acquired brain injury and much more likely to be psychological (non organic) in nature. In effect, Dr Loewy felt that having a neuropsychological assessment would be counter-productive as it may inadvertently reinforce her strongly held beliefs that she has an ABI. 
72	On 24 June 2016, TAC wrote to Ms Prospero denying liability for funding for any treatment of the alleged ABI, for the reasons stated by Dr Loewy. That is the first decision the subject of this review.
73	Meanwhile, on 3 June 2016, Dr Davidson had referred Ms Prospero to IBIS for neuropsychological testing. On 15 July 2016, IBIS responded saying it was unable to accept the referral as it is a rehabilitation service, and Ms Prospero was unable to provide evidence of a brain injury. However, an alternative pathway was available, namely referral to Dr Keith Johnson, neuropsychiatrist.
74	On 5 October 2016, Dr Johnson provided a detailed report to Dr Davidson. He indicated it was not clear whether Ms Prospero had suffered a brain injury at all. And in any event, her non-physical injuries were, in effect, dominant. His impression of her presentation was that her problems were more in keeping with a diagnosis of functional neurological disorder (FND). (See further discussion about this below.)
75	The mesh which had been put in place in August 2014 at Monash did not improve Ms Prospero’s symptoms of vaginal pain. On 3 August 2016, she underwent a procedure to remove the mesh. This was performed by Professor Kate Moore, obstetrician and gynaecologist, at St George Hospital in Sydney. 
76	Subsequently, she was given a diagnosis of pudendal neuralgia. This was apparently first diagnosed by Professor Moore. 
2017
77	Whilst at St George Hospital in 2016, an inguinal hernia on the right side was diagnosed. On 11 May 2017, the surgeon Allan Mekesic indicated he would arrange for that to be repaired at the Shellharbour Public Hospital as soon as a bed became available.
78	On 19 April 2017, Dr John Carmody, neurologist and neurophysiologist at Wollongong Hospital, wrote to Dr Jalota. This was in response to a referral of 11 January 2017 from Dr Jalota which referred to ‘Migrainous headaches after MVA in 2012’. 
79	Dr Carmody’s response of 19 April 2017 mentioned the possibility of  an acquired traumatic brain injury. 
80	On 6 November 2017, Ms Prospero was examined by Dr Theirry Vancaillie, gynaecologist and pain medicine specialist, Sydney. Dr Jalota had referred her on 17 August 2017 for ‘Lower abdo/Vaginal pain after an MBA on 9/2/12. Had a mesh put in 2014 and has been in pain. Has stress Incontinence. Feels worse when rides her Bike. Has affected her ADLs [activities of daily living].’ And under ‘Problem List’; Dr Jalota wrote: ‘Anxiety with depression’.
81	Dr Vanciallie’s report of 6 November 2017 confirmed pudendal neuropathy and pudendal neuralgia (see below).
2018
82	Sometime around 2018, Ms Prospero moved to Queensland.
2019
83	On 24 April 2019, Dr Kerryn Green, a Brisbane consultant neurologist, wrote to Ms Prospero’s new GP, Dr Dhobba (Ipswich). She did not have a complete history. She said Ms Prospero ‘believes she hit her head but did not lose consciousness’. She commented: ‘Apparently the police did not even call an ambulance which seems strange.’ She made several suggestions for investigations and treatments. In terms of memory, she did a Mini-Mental State Examination, and the results were good. Finally, Dr Green said:
The reason why she is getting all of this assessed now is because her insurance company stopped paying for neurology visits and further testing. She now feels she is in a position financially where she can get her symptoms investigated. I have told her that if she has a head injury particularly causing cognitive difficulties it is unlikely that we will be able to make any significant impact on that with regards to management.
84	On 29 August 2019, TAC wrote to Ms Prospero refusing requests previously made for it to pay for any treatment for hernia conditions, prudential neuralgia or bladder incontinence. (As noted above, Ms Prospero is now not challenging decisions by TAC in relation to bladder incontinence.) This refusal by TAC was in line with a 12 August 2019 recommendation of a TAC clinical panellist, Dr Michael Giummarra (whose field is described as ‘Sports Medicine’).
2020
85	On 6 March 2020, an informal review was carried out by Dr Michael Giummara of that decision.   Dr Giummarra noted that further information had been received relevant to this decision. This included hospital notes now received concerning previous incontinence surgery in Cairns in 2005, and noting various other pelvic procedures, five normal vaginal deliveries, urodynamic studies showing mixed stress and urge incontinence prior to the accident, an adominoplasty in 2007 and another motorbike accident in 2007.
86	Dr Giummarra said:
Hospital notes show not only predating incontinence surgery and cause, but also multiple abdominal surgeries which can predispose client to hernias and possible pudendal neuralgias.
87	Dr Giummarra noted Ms Prospero had expressed concern about the recommendations to TAC being made by a sports doctor such as himself. While confirming his opinions, Dr Giummarra suggested further reviews by subject matter experts, in particular, a gynaecologist IME, a neurologist IME to comment on the neuralgia as a complication of Lyrica (medication) and a general surgeon to comment on the inguinal hernia. 
88	Apparently in response to this, the TAC obtained reports from Professor Richard Stark, neurologist, and from Associate professor David Webb, urological surgeon. These were consistent with Dr Giummarra’s and TAC’s conclusions that the hernia conditions, prudential neuralgia and bladder incontinence were not caused by the accident.
2021
89	On 27 May 2021, TAC received the first of two reports from Professor Stark, a Melbourne neurologist. On his analysis of 595 pages of material, and his telehealth consultation with Ms Prospero (then in Queensland) he found no evidence of neurological injuries or conditions as a result of the motorbike accident. He also said Ms Prospero may have pudendal neuralgia, but if so, it is unlikely to have arisen from the accident. It is more likely to be associated with the surgery she had for vaginal repair associated with bladder symptoms. He said he suspected there were unrelated conditions affecting her then presentation, in particular, vaginal pain. 
90	TAC obtained two reports from the IME Dr Justin Lewis, psychiatrist. The first was dated 22 June 2021. It stated that Ms Prospero ‘denied any head strike or loss of consciousness and stated she was wearing full protective gear’. This report also indicated that certain questions could not be answered without a report from Ms Prospero’s long-term treating psychologist, Ms Nicole Plotkin. 
91	Such a report was obtained, dated 22 September 2021. Ms Plotkin said Ms Prospero had chronic PTSD, ongoing physical pain, memory and communication deficits, difficulty learning new things, behavioural changes, sleep disturbances, tremors, migraines. 
2022
92	On 29 April 2022 and 16 May 2022, Ms Prospero’s new GP, Dr Tony Malyszek, of Birtnya (Sunshine Coast) wrote to TAC requesting funding for ablation to the right obturator nerve, to be provided by Dr Ken Law. Both letters were short (two and three lines, respectively) and simply asserted, or implied, that this was to treat an injury caused by the accident in 2012.
93	On 2 August 2022, TAC wrote to Ms Prospero refusing Dr Malyszek’s request to pay for any treatment for a right obturator nerve injury. 
94	In his second report, of 11 September 2022, the IME psychiatrist Dr Lewis said:
On the history available, the transport accident contributed to a marked impairment in Ms Prospero's psychosocial functioning in a setting of marked financial strain and unemployment. Ms Prospero gave a history of unstable accommodation and periods of homelessness.
95	Dr Lewis also said:
Whilst Ms Prospero acknowledged some transport-related traumatisation symptoms (intrusive memories and avoidance of motorcycle riding), my view was that traumatisation symptoms were not of a breadth or severity to constitute a formal Post-traumatic Stress Disorder.
96	Dr Lewis was also asked: ‘The client states she has an ABI. Are you able to comment on this?’. He responded:
I am not sure on what basis the client believes an acquired brain injury was sustained. I am not a neurologist and was not provided any neuropsychological assessments. The likelihood however of an acquired brain injury is negligible given the mechanism of injury (no head strike or loss of consciousness). I would state that any cognitive difficulties are likely due to mood or anxiety symptoms.
97	TAC asked Professor Stark, the IME neurologist, to prepare a second report, addressing the question as to the possibility of obturator nerve injury. His second report was dated 20 October 2022. He concluded there was no evidence of obturator nerve damage from the accident. This is dealt with further below.
2023
98	On 13 February 2023, TAC wrote to Ms Prospero refusing to pay for any treatment for a lumbar spine condition. This had been requested by the GP, Dr Malyszek, by letter of 20 October 2022. It sought approval for this treatment to be carried out by Dr Scott Masters, of Coloundra, Sunshine Coast, Queensland. His letterhead describes him as practising ‘Musculoskeletal Medicine’. 
Evidence and submissions by Ms Prospero
99	As noted, Ms Prospero made significant efforts to marshal the substantial volume of technical medical material relating to her evolving medical condition since the accident over 11 years ago, to argue her case to the Tribunal. 
100	Her case is based in part on alleged failures of her then GP, Dr Griffith, and the TAC representative who initially assisted her in completing her claim, to record symptoms she now says she suffered soon after the accident, relevant to her claim concerning head injury, and her groin/ pelvic pain. 
101	However, there is little or no support to be found in the other evidence for her contention that such failures occurred. The other evidence is not consistent with that having occurred. In relation to the TAC claim, Ms Prospero added certain notations to the partially completed form, but not in relation to those matters. 
102	At various points, Ms Prospero says additional tests should have been done, or wrong judgements were made, which she believes would have disclosed a link between her injuries or condition and the accident. 
103	However, there is no objective evidence of failures by medical practitioners to provide appropriate diagnostic and clinical assistance to Ms Prospero. Of course, the Tribunal is required to decide the case on the evidence provided. Ms Prospero did not satisfy me of any particular instance where, had a certain test been undertaken, it would have demonstrated that an injury or condition arose from the accident, rather than from other causes. 
104	Nor is there evidence which satisfies me that TAC has unreasonably restricted Ms Prospero’s access to appropriate diagnostic or treatment services from practitioners, as she has alleged. I acknowledge Ms Prospero has experienced many challenges in terms of her health, and her psychosocial circumstances. She notes she has experienced homelessness, and difficulty in obtaining stable employment. She has had to endure long waits for services and procedures carried out by public hospitals. 
105	But there is no basis on which I can make any adverse finding about TAC’s conduct which ultimately relevantly impacts on the questions of causation which I have to determine in this case. 
106	In terms of her evidence about the accident, I have made findings above, preferring the evidence of others, which is more consistent with the surrounding circumstances, that it was not a high speed crash, and was not as dramatic as her descriptions suggest. 
107	I now deal specifically with each of the four decisions being reviewed.
Acquired Brain Injury
108	The decision by TAC to refuse to accept that Ms Prospero had an ABI, and to refuse to fund treatment for an ABI was made on 24 June 2016. This was stated to be in response to requests to fund such treatments, made by her GP, Dr Jalota.
109	Ms Prospero indicated that now, in 2023, she seeks funding for treatment by a range of health providers on the basis of her claimed ABI or post-concussive syndrome (which she also referred to as ‘PPPD’): a behavioural optometrist (to deal with double-vision and blurring), a ‘vertigo physio’, a ‘neurologist who’s working on the occipital at the back of the head’, an  occupational therapist, and possibly, a practitioner to treat her jaw. These appear to be practitioners who she has seen utilising her own funds, but wishes TAC to pay for in the future. It is not clear which of these treatments have actually been the subject of specific requests to TAC, but Ms Prospero included them in her list of treatments she seeks be funded to treat her alleged brain injury. Of course, a precondition for funding for such services is that there has actually been a brain injury suffered as a result of the accident.
110	Ms Prospero points to a few statements in some of the numerous medical reports (quoted above) to the effect that she might have an ABI. 
111	The TAC contends, on the other hand, that in none of the reports, before or after 2016, is a diagnosis of ABI seriously supported.
112	The TAC relies in particular, on the evidence of Dr Johnson. He is the neuropsychiatrist from IBIS who assessed Ms Prospero upon the referral of Dr Ian Davidson, rehabilitation specialist. This occurred on 30 August 2016. On 5 October 2016, Dr Johnson said, in a report to Dr Davidson:
She described the accident…Ninette has a vivid recall of the details of the event…She does not recall any loss of consciousness, even recalling speaking to the driver after the event. No ambulance was called, and she was not brought to hospital. There was no brain neuroimaging done at the time. Ninette does recall being stunned and in a state of shock. She was brought to the garage by the driver and then went to a restaurant with a male friend after that. She described working at her job at the Local Council the day after the accident but sometime close to the accident she was bed ridden for 4 days due to “shock” and pain…Ninette described that in the days after the accident her friends remarked that she was not making sense on Facebook…
…There is mention in her GP notes from Victoria that she was referred for neuropsychological testing at Swinburne University, prior to her accident, but it is unclear if this was ever completed.
I understand she has recently had a review with a neurologist to see if her symptoms were consistent with a possible brain injury…
…
This is a very confusing and complicated history. One of the central questions is what bearing the brain injury had on the presentation, if there had been a brain injury at all. I understand speaking to Sally Home (IBIS) that they have decided not to proceed with providing ongoing rehabilitation to Ninette as the presence of a brain injury was in doubt. If there was a brain injury, from the description it is likely that the brain injury was a mild brain injury. Some of the symptoms that Ninette describes such as fatigue, memory and concentration problems, pain and sleep problem have been described as post‐concussive symptoms. That they are present four years after the initial accident is rare and the literature tends to suggest that more prolonged post-concussive symptoms are more linked with mental health rather than physical disability. I think it would be a fair state to remark that the disability that Ninette experiences outweighs the physical injury. It is also pertinent that some of these problems preceded the accident including subjective comprehension difficulties; memory and concentration issues; and her mood complaints. My impression of these problems would be that this is more in keeping with a functional neurological disorder (FND).
113	Dr Johnson gave oral evidence. He said that for a diagnosis of ABI to be made, there must have been a loss of consciousness, or a head strike, and probably both. Ms Prospero asserted this proposition was wrong, and contrary to ‘all First Aid Courses’, but I accept the evidence of the expert, Dr Johnson, on this. 
114	Here, there was no loss of consciousness, and there was no firm indication that there had been a head strike. Further, inability to recollect the accident itself is characteristic of a head injury. Yet here, in contrast, Ms Prospero has, and has always had, a vivid memory of the event. 
115	Dr Johnson also said that if there had been a brain injury, he would have expected symptoms such as headache or sensory sensitivities (for example, increased sensitivity to light or sound), but these were not apparent.
116	Dr Johnson confirmed his view that Ms Prospero’s presentation and records were more in line with a functional neurological disorder (FND). That is, a non-organic source of her symptoms, as opposed to an organic source (ABI).
117	Dr Johnson also said: 
•	He agreed that some of the problems experienced by Ms Prospero said to be referable to an ABI preceded the accident, namely subjective comprehension difficulties, memory and concentration issues, and mood complaints. The records of Dr Griffith and the application form for the Disability Support Pension are consistent with this. They refer to occipital headaches, double vision, depressive mood, difficulty with spelling and grammar, concentration, memory and general everyday functioning.
•	With regard to the mood complaints, that while he could not see any symptoms of post-traumatic stress disorder (PTSD), there did appear to be a past history of tumultuous relationships and possibly trauma, including the accident itself. These considerations supported the conclusion of FND.
•	The MRI in April 2015 showed a ‘normal’ brain, not an injured brain, and that MRIs are very effective at showing brain injury. 
118	Ms Prospero submitted, in effect, that Dr Johnson’s assessment of her was inadequate. She said he only spent 15 minutes with her at the appointment with him at IBIS on 30 August 2016. In my view, however, it is clear from his oral evidence and his detailed report that he did give careful consideration to her case. He had access to extensive medical records. I note that he also spoke to her on the phone after the appointment to gather further information that was missing from the original interview. And he said a lot of time ‘was taken in collecting collateral information regarding Ninette’.
119	The high point of Ms Prospero’s case that she suffered an ABI appears to be the letter from Dr John Carmody of 19 April 2017, neurologist and neurophysiologist, Wollongong Hospital. This was in response to a referral from Dr Jalota which referred to ‘Migrainous headaches after MVA in 2012’. 
120	Dr Carmody said: 
‘I explained that her symptoms appear inter‐related and have developed as a consequence of her motorbike accident 5 years ago. I suspect she sustained an acquired traumatic brain injury. I would suggest a holistic approach with simple analgesia. There is no need for any further investigations from my perspective.’
121	TAC submitted that this statement as to causation should not be given weight. It said it is an outlier, amongst all the other opinions which do not support a diagnosis of ABI. It is not clear on what basis this statement is made. It is in a short letter, which did not indicate what assessments or tests were relied on. The statement was not made in the context of an explicit analysis of causation. It is not clear that Dr Carmody was aware there was no loss of consciousness. Aside from this letter, there is no other substantive material from Dr Carmody in the Tribunal Book.
122	Logically, the first question to consider is whether Ms Prospero actually suffered a head strike. It is clear she did not lose consciousness. The circumstances of the accident and its aftermath suggest she did not suffer a head strike. I am satisfied the collision occurred at low speed. Ms Prospero said she was able to hold on to her bike, to the extent of not being thrown into other vehicles, or into the path of other vehicles (although she does also say she was pinned under the motorbike). There was no damage to the van. The other driver and the police observed no injuries, or difficulty in Ms Prospero talking and walking around. No ambulance was called, and there is no reference to a head strike in contemporary reports of the accident, nor in the TAC claim form, nor in the medical reports for a considerable period after. This is telling. 
123	It is only from the point commencing about 20 months after the accident, that the records contain references to there having been a head strike. These reflect reports given by Ms Prospero herself to the practitioners. The first such report was by Dr Janovic of Caufield hospital, on 24 September 2013. This states: ‘her helmet sustained damage, so there must have been some trauma to her head’.
124	The reports are not consistent, however. For example, Dr Lewis’ report of 2021 and 2022 stated she denied any head strike.
125	In my opinion, the better view on the evidence overall, is that there was no head strike. That rules out an ABI being suffered as a result of the accident. 
126	Even if that conclusion were not correct, however, the evidence does not otherwise support there being an ABI as a result of the accident. 
127	As noted, there was a neurological assessment by Dr Waterson in February 2014, which made no mention of an ABI. This was followed by the consultations involving Dr Jalota and Dr Davidson during 2015, which focussed on dealing with Ms Prospero’s chronic pain. In early 2016, both Dr Jalota and Dr Davidson mentioned the possibility of a brain injury, but this was in the context of seeking to allay Ms Prospero’s fears that she had an ABI. 
128	However, she was able to be assessed by way of an alternative pathway, by Dr Johnson. His conclusions and oral evidence, to the effect that he believes her symptoms are more likely due to non-organic causes, rather than a brain injury, have been described above. This included reference to the MRI in April 2015, showing a ‘normal’ brain, not an injured brain. 
129	I accept that aside from Dr Carmody, none the practitioners who referred to an ABI, did so in terms which extended beyond mere speculation. Indeed, Dr Carmody merely said that he suspected an ABI. Further, the above concerns articulated by the TAC about accepting Dr Carmody’s briefly expressed view, are in my opinion, valid. 
130	In my view, on all the evidence, it is implausible that Ms Prospero suffered an ABI, caused by the accident.
131	I therefore affirm the TAC’s decision of 24 June 2016 refusing to pay for any treatment or benefits related to an ABI.
Right inguinal hernia, pudendal neuralgia
132	I now turn to the review of the decision concerning TAC’s decisions to refuse funding for treatments for a right inguinal hernia and pudendal neuralgia. The claims for these conditions were refused by the TAC on 27-29 August 2019. This was on the basis that those three conditions pre-dated the transport accident. 
133	The third matter the subject of that decision was and bladder incontinence. However, Ms Prospero made it clear she makes no claim in relation to that. So I make no reference to the treatment of that issue in the expert and clinical reports concerning this claim. 
134	Concerning hernia conditions, TAC referred first to the conclusion of Dr Griffiths that the left inguinal hernia, diagnosed in May 2012 (three months after the accident) and operated on in July 2012, was not related to the accident.  
135	The claim for the right inguinal hernia appears to have been made over four years later, on or around 2 November 2016. 
136	In her evidence, Ms Prospero said that her right hernia was finally operated on in March 2022. Accordingly, her claim is confined to any further treatment appropriate for a hernia condition. Ms Prospero’s position appeared to be that she sought funding for treatment for her pain, in particular for pudendal neuralgia, in the form of ablation procedures provided by Dr Masters at intervals of 12 months or less. To the extent her pain was still caused by a ‘hernia’ condition, that was an additional basis on which she sought approval for that treatment. 
137	There was no suggestion of any mechanism by which any ‘hernia’ condition suffered by Ms Prospero would justify treatment now. Nevertheless, the case put by TAC in examination of witnesses, and in its submissions, was that any hernia condition was not caused by the accident. 
138	TAC noted that in Professor Moore’s report to the GP, Dr Jalota, of 18 July 2017, she did not mention any of Ms Prospero’s conditions, including her hernia, as being related to the accident. 
139	From then, two years passed with no clinical events relevant to hernia recorded between 2017 and 2019. 
140	Ms Prospero was seen by Dr Bernadette Brown, treating urogynecologist, in May 2019. She did not describe the presence of a hernia.
141	Finally, a desktop report dated 1 April 2020 by Dr John Coleman, IME gastroenterologist and hepatologist, referred to this report by Dr Brown, and noted that under the AMA Guides to the Evaluation of Impairment, 4th edition, for any impairment related to hernias, it is mandatory to have a palpable defect in the supporting structures of the abdominal wall. He said where there is no palpable lump, as was suggested to be the case by Dr Brown, there is zero impairment associated with this.
142	As noted, the TAC clinical specialist, Dr Michael Giummarra, in his reviews of 12 August 2019 and 6 March 2020, concluded that any hernia condition was not due to the accident. (Nor was her pudendal neuralgia, or bladder incontinence). Rather, these were likely due to factors pre-dating the accident, including the 2005 surgery in Cairns, five vaginal births, and other factors.
143	Ms Prospero’s position was that any hernia condition was caused by the accident. Concerning her right hernia, she referred to the pain she experienced being similar to that preceding her left hernia operation in July 2012. She asserted that she had reported pain caused by a right hernia to Dr Griffiths, but he did not record that. 
144	As stated, it is not apparent how any treatment in the future could be justified by a hernia condition in this case. But even if it was, despite Ms Prospero’s assertions, I cannot be satisfied on the evidence that any hernia condition is related to the accident.
145	Hence I affirm TAC’s decision refusing to pay for any treatment or benefits related to any hernia condition. 
146	The third matter the subject of TAC’s decision of 27 August 2019 was pudendal neuralgia. As noted, this is pain in the lower pelvic/ genital/ perineal area, associated with damage or irritation to the pudendal nerve.
147	Ms Prospero believes that her pelvic symptoms arose following the ‘overstretch strain’ she experienced when trying to hold onto the motorbike at the time of the collision. She indicated that this is the primary condition for which she seeks approval for approximately annual courses of ablation. 
148	TAC contends that the evidence suggests she likely does have pudendal neuralgia, but that this was not caused by the accident. The most likely cause is the surgeries she had had for vaginal repair associated with bladder symptoms.
149	Professor Stark explained that pudendal neuralgia is a recognised complication of vaginal repair surgery because of the proximity of the pudendal nerve to the area being operated on. Alternately, ‘gradual traction on the nerve as the anatomy changes over time following surgery’ could be a cause. 
150	Professor Stark expressed the view that: ‘Direct traumatic causes of pudendal neuralgia would typically involve major trauma to the pelvis which clearly did not occur in [the accident in] this case.’ Further, he agreed that pelvic pain was not recorded until two years after the accident. Accordingly, he said that the pudendal neuralgia was not caused by the accident. 
151	Dr Vancaillie was more circumspect and nuanced about the causes of pudendal neuralgia. He also referred to pudendal neuropathy. In his oral evidence Dr Vanciallie explained:
Neuralgia means pain in the distribution of a particular nerve, so pudendal neuralgia means pain the distribution of the pudendal nerve. Neuropathy means an abnormal nerve function which usually is the result of a trauma to the nerve. So Ms Prospero presented with a neuropathy with a trauma to the right pudendal nerve.
…
Ms Prospero has both neuralgia as a symptom…and does have neuropathy. 
152	Asked about causes of such trauma, Dr Vancaillie said it is very difficult to tell. Any trauma in the region could exacerbate symptoms and abnormal function. It could be a minor thing such as missing a step getting on a bus, or a normal vaginal delivery (which he said is not to be equated with a major injury either) or an event such as the surgeries in 2005, 2014 and 2016. However, while ‘it becomes very technical’, neuralgia is more likely to follow surgery than neuropathy.
153	But Dr Vancaillie certainly did not draw a causal link between the accident and those presentations. In particular, his evidence was to the effect that if there was a delay of more than a few weeks or a few months in presentation of pain, then it is less likely that the accident was the cause of the pain.
154	Finally, TAC also obtained a report from David Webb, urological surgeon, dated 18 March 2021. He was not available to give oral evidence, as he has retired, so the extent to which his evidence is to be relied upon is reduced accordingly. He relevantly concluded that Ms Prospero’s pudendal neuralgia symptoms are not related to a urinary injury that resulted from the accident, because there was no such injury. Pudendal neuralgia was diagnosed by others in 2016. It is known that pelvic surgery and prolapse surgery can result in pudendal neuralgia, even when ‘done perfectly’.
155	Ms Prospero contended that her symptoms of pudendal neuralgia arose straight after the accident. However, the evidence is the contrary, as noted above. 
156	On the evidence as a whole, I cannot be satisfied that the accident was a cause of her pudendal neuralgia. I affirm TAC’s decision not to approve funding for treatment of her pudendal neuralgia. 
Obturator nerve/right hip
157	The TAC decision to refuse to fund treatment to the right obturator nerve was made on 2 August 2022. This was in response to requests from Ms Prospero’s GP, Dr Malyszek, of 29 April and 16 May 2022. The request was for ‘a service of ablation directly to the obturator, which would aid in reducing her pain’. This was to address ‘Ninette’s Obdurator Nerve issue in the right hip’.
158	The basis of the TAC decision was that while Ms Prospero did suffer a soft tissue injury to her right hip in the accident in February 2012, the accident did not involve major trauma to the pelvic region, and that injury had resolved by 2014. The letter of refusal stated that various injuries were noted by the physiotherapist in October 2012 and by the IME Dr Baker in November 2012, but there was no reference to right hip pain. No imaging was requested by Ms Prospero’s GP. 
159	In response to Ms Prospero’s claim that obturator pain, or right hip pain (as opposed to pudendal neuralgia) was being experienced as a result of the accident, TAC had a further report prepared by Professor Stark. This was dated 20 October 2022. 
160	Professor Stark explained that the obturator nerve is mainly involved with the motor function of the leg, and the sensory function of the leg. So hip and buttock pain would not indicate obturator nerve damage. Nor would it be related to pudendal neuralgia, as Ms Prospero had asserted to TAC.
161	Indeed, Professor Stark said that there was no indication of obturator nerve dysfunction.
162	It is also noted that in relation to the right hip, there was an ultrasound conducted in May 2013, and an MRI in 2015 or 2016. Both showed a normal hip, with no evidence of injury. Dr G J Stackpool, orthopaedic surgeon, agreed, in a report of 22 March 2017.
163	In my view, it is clear from the evidence that the suggestion of obturator nerve damage or pain is, in effect, a red herring. 
164	It seems to have arisen for the first time in 2022, over 10 years after the accident, from Ms Prospero’s GP at that time.  
165	I am satisfied that there is no basis to conclude that there is in fact obturator pain or injury, and certainly that there is no obturator pain or injury as a result of the accident. 
166	Accordingly, I affirm TAC’s decision of 2 August 2022 refusing to pay for treatment or benefits from an obturator nerve injury or right hip condition. 
Lumbar spine
167	The final TAC decision the subject of this proceeding is its refusal to fund treatment requested by Dr Scott Masters for what it described as a ‘lumbar [spine] condition’ which TAC refused to fund on 13 February 2023. 
168	The genesis of this request was a letter by the GP, Dr Malyszek, to TAC of 20 October 2022, stating that following a review by Dr Scott Masters, a ‘Medial Branch Block to clarify whether the nociceptive right buttock/ lateral thigh is referred pain from the Lumbar Spine’ was requested. Additionally, there was a request ‘to trial a right sided Superior Cluneal Nerve Block’.
169	The TAC approved payment for these diagnostic blocks on a without prejudice basis. 
170	These were carried out. They provided some temporary pain relief to Ms Prospero. On this basis, Dr Masters suggested that Ms Prospero would be a candidate for radiofrequency ablation, aimed at providing longer term pain relief. 
171	Dr Myron Rogers, neurosurgeon, provided a report dated 15 March 2023 in relation to this. He also gave oral evidence.
172	Dr Rogers said that it was unsurprising that the lumbar spine block provided some temporary pain relief, as it involved injecting local anaesthetic. But it did not answer the question originally posed by Dr Malyszek, as to whether the buttock and thigh pain was in fact referred pain from the lumbar spine. The question of the likely causes of Ms Prospero’s chronic pain, and the best course for dealing with it, are best addressed by a pain management specialist. He noted there is a comprehensive report by an appropriately qualified pain management specialist, Dr Ian Thong of 1 August 2019. And this did not advise any interventions in relation to those areas. 
173	Dr Rogers’ report said: 
On 30 July 2019 Ms Prospero was assessed by Dr Ian Thong, Pain Specialist Physician in the Interdisciplinary Persistent Pain Centre at Gold Coast University Hospital and in his comprehensive letter to the referring General Practitioner (GP) Dr Dhobha there is no mention of low back pain.
In a letter dated 28 January 2021 to Dr Dhobha from Dr Nick Chiang, Pain and Rehabilitation Specialist, he reports that an MRI lumbar spine revealed degenerative change, without any elaboration of the findings.
In an undated letter to the TAC from Dr Masters he refers to lumbar facet joint blocks (right L4/5 and L5/S1), there is no information as to why these blocks were undertaken.
Therefore based on the information provided Ms Prospero has mild constitutional degenerative change of the lumbar spine.
174	Concerning the lumbar spine, Dr Rogers noted that none of the multiple medical assessments and independent medical reports performed over the three years following the 9 February 2012 transport accident record a history of low back pain. The lumbar spine and lower limb extension findings were also consistently normal. 
175	There was an MRI scan of the lumbar spine in 2017. Dr Rogers had not seen these at the time of preparing his first report. Dr Rogers produced a two line supplementary report of 22 March 2023, after he was provided with a copy of the results of an MRI which had been done on 6 June 2017. He said these in effect reinforced his opinion. He said the degenerative changes shown on the MRI comprised normal wear and tear, which one would expect for a person in their mid-fifties. 
176	Dr Rogers’ opinion was that the medical material after the accident showed no suggestion of lower back or lumbar injury at that time. And Ms Prospero’s lumbar area does not show damage beyond the normal wear and tear which is expected for a person of her age. Accordingly, Dr Rogers concluded, the accident did not cause an injury to her lower back or lumbar spine. 
177	Additionally, Dr Rogers said that the blocks proposed did not serve the diagnostic purpose of determining where the pain experienced by Ms Prospero is or is not coming from. So they are not justified in terms of the diagnostic purpose expressed in Dr Malyszek’s request. 
178	Dr Rogers also noted that it appeared that Dr Masters is a musculoskeletal physician, and it was not apparent he was also a pain treatment specialist. Dr Rogers said the Australian Pain Society and the College of Anaesthetists provide specialist pain management qualifications in the discipline of pain management.  However, he said, there is no restriction on any practitioner carrying out such nerve block procedures. He also noted that some interventional pain specialists separate out the process of assessing the patient from the actual carrying out of the procedure, ‘so there’s minimal bias in relation to assessing the results of the patient’s pain diary’.  Asked if that separation had not occurred here, Dr Rogers’ response was to the effect he could not see that it had (although this was not definitive, as it was only based on the letters he had received). 
179	From statements she made during the hearing, and from the fact that in her final submissions, there is little if any reference to treatment being sought for a lumbar spine condition, it is apparent Ms Prospero takes the view that there was no injury to her lumber spine. Rather, she says, there was an injury to the hip. And the pain reduction she experienced from the diagnostic blocks which took place was in fact referred pain from her hip or buttock.
180	In any event, I find that there is no basis on which to conclude that there was a lumbar injury suffered in the transport accident, which would warrant payment by TAC for radiofrequency ablation to treat the lumbar spine.
181	Hence, I affirm TAC’s decision of 13 February 2023 refusing to pay for any treatment or benefits related to a lumber condition.
182	Nor, as I have indicated above, is there any basis on which I could conclude that this treatment should be approved for the purpose of treating pudendal neuralgia, or any injury to the hip or pelvic/ genital/ perineal area.
Conclusion
183	For the above reasons, I affirm the four decisions by TAC which are the subject of these reviews.

J. Smithers
Senior Member