DETERMINATION OF REVIEW PANEL	
	
CITATION:	Neysie v AAI Limited t/as AAMI [2024] NSWPICMP 423	
		
CLAIMANT:	Foad Neysie	
		
INSURER:	AAI Limited ABN 48 005 297 807 t/a AAMI	
		
REVIEW Panel	 	
		
MEMBER:	Terence Stern OAM 	
		
MEDICAL ASSESSOR:	Geoffrey Stubbs	
		
MEDICAL ASSESSOR:	Sophia Lahz	
		
DATE OF DECISION:	28 June 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident; Medical Assessor determined that the proposed treatment disputes were not caused by the motor accident; issue of causation considered according to section 6.6 of the Motor Accident Guidelines; Held – proposed treatment for left knee arthroscopy was causally related to the accident and was reasonable and necessary in the circumstances; proposed treatment and care for left shoulder surgery did not relate to the injury caused by the motor accident; Medical Assessment Certificate revoked.  
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
1.	The Review Panel revokes the certificate of Medical Assessor Cameron dated 
26 August 2023. 
2.	The Review Panel substitutes the following determination and issues a new certificate to certify that:
•	the proposed treatment and care for left knee arthroscopy surgery does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances, and
•	the proposed treatment and care for left shoulder surgery does not relate to the injury caused by the motor accident. 

STATEMENT OF REASONS
introduction
1.	On 3 August 2019, Foad Neysie (the claimant), was driving a Toyota Hiace van when it was involved in a collision between the front left side of his vehicle, and the front right side of the other vehicle. 
2.	The police and ambulance attended, and Mr Neysie was taken to Ryde Hospital where he remained a short time. 
3.	AAMI is liable to pay Mr Neysie the cost of medical treatment, under the Motor Accidents Injuries Act 2017 (MAI Act). 
4.	The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment:
(a)	whether the request for a left knee arthroscopy is causally related to the injuries sustained in the motor vehicle accident (the accident);
(b)	whether the request for a left knee arthroscopy is reasonable and necessary in relation to the injuries sustained in the accident; 
(c)	whether proposed left shoulder surgery is causally related to the injuries sustained in the accident, and
(d)	whether proposed left shoulder surgery is reasonable and necessary in relation to the injuries sustained in the vehicle accident.
5.	Medical Assessor Cameron certified that the following treatment:
(a)	proposed left knee arthroscopy, and 
(b)	the proposed left shoulder surgery, 
did relate to the injuries caused by the motor accident.
6.	Medical Assessor Cameron found that the following treatment and care:
(a)	proposed left knee arthroscopy, and 
(b)	the proposed left shoulder surgery, 
were not reasonable and necessary in the circumstances. 
THE REVIEW 
7.	Mr Neysie requested referral to a Review Panel (the Panel) on the basis that there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.
8.	The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
9.	The Panel issued a direction to the parties requesting provision of respective bundles for consideration. The parties filed bundles of documents. 
DOCUMENTS CONSIDERED BY THE PANEL
10.	On 29 November 2023, Mr Neysie’s solicitor uploaded to Pathway an indexed bundle of documents paginated from page 1 to 993 (Mr Neysie’s documents). On 1 December 2023, AAMI’s solicitor uploaded to Pathway an indexed bundle of documents paginated from page 1 to 283 (AAMI’s documents).
Legislative framework and relevant case law
General
11.	Mr Neysie’s claim is governed by the provisions of the MAI Act. It provides a scheme for the compulsory third-party insurance of motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
12.	Statutory benefits payable by the “relevant insurer” in accordance with Part 3 of the MAI Act include:
(a)	treatment and care benefits under division 3.4.
13.	Unlike the previous scheme, damages for treatment and care cannot be recovered by 
Mr Neysie, against the insurer. The only mechanism for the recovery of the cost of treatment and care is through a statutory benefits claim. 
14.	Section 3.24 provides as follows:
“(1) 	An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(b)	the reasonable cost of treatment and care,
…
(2)	Statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was reasonable and necessary in the circumstances or related to the injury resulting from the motor accident concerned.”
Causation of injury
15.	AAMI is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”. 
16.	This requires the Panel to determine the injuries resulting from or caused by the accident (if there is a dispute) before determining whether the treatment relates to those injuries.
Treatment related to the injury resulting from the accident
17.	The Panel notes AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 where the test of the relationship between surgical treatment and an accident was determined in a matter where the Motor Accident Compensation Act 1999 applied and where the claimant had sustained injury in three motor accidents. While a slightly different test applied under the 1999 legislation, the case remains relevant on the issue of “relationship”.
18.	The court said:
“[28] 	The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] 	I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
Reasonable and necessary 
19.	In order for the insurer to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. The “reasonable and necessary” test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”. 
20.	When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 his Honour Justice Grove in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Meagher JA and Santow JJA agreeing), stated: 
“[22] 	I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Edn and ‘that cannot be dispensed with’ - Macquarie.
[23] 	The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
21.	In Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) 	the appropriateness of the treatment in dispute;
(b) 	the availability of alternative treatment;
(c) 	the cost effectiveness of the treatment;
(d) 	the actual or potential effectiveness of the treatment, and
(e) 	the acceptance by medical experts of the appropriateness of the treatment.
22.	While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Mr Neysie’s proposed treatment is “reasonable and necessary”.
In the circumstances
23.	Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. The question of the relationship between accident and treatment is dealt with in the consideration of whether the accident caused the injury and the disputed treatment’s relationship to that injury. Therefore it may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury or a condition but if the injury or condition was not caused by the accident the claimant will not be entitled to statutory benefits.
24.	The words “in the circumstances” in the context of whether a particular treatment is “reasonable and necessary” must therefore refer to the particular circumstances of the claim and the claimant in the proceedings before the Panel. As the members of another Panel said in the matter of Allianz Australia Insurance Limited v Vella (No 1) [2023] NSWPICMP 73:
“That may mean that a particular claimant has subjective requirements that may mean that some treatment for a specific injury is reasonable and necessary whereas the same treatment for the same condition of a different claimant may not satisfy the test.”
Dispute resolution
25.	Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”. 
CERTIFICATE UNDER REVIEW 
26.	Medical Assessor Cameron issued a certificate on 26 August 2023. 
27.	The following treatment disputes were referred by the Commission for assessment:
(a)	whether the request for a left knee arthroscopy is causally related to the injuries sustained in the motor vehicle accident;
(b)	whether the request for a left knee arthroscopy is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident; 
(c)	whether proposed left shoulder surgery is causally related to the injuries sustained in the motor vehicle accident, and
(d)	whether proposed left shoulder surgery is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident.
Submissions to the Medical Assessor 
28.	Medical Assessor Cameron summarised the submissions at [3]- [4]: 
[3] 	Mr Neysie, via his solicitor, states that the treatment is reasonable and necessary. 
[4] 	The insurer states that the treatment is not reasonable and necessary.
Documents considered 
29.	Medical Assessor Cameron considered the documents provided in the application and reply. He further considered the additional documents provided. 
30.	Medical Assessor Cameron took a history at [8] and a history of the accident at [9]. Nothing turns on the accuracy of the history taken. 
[9] On 2 August 2019, Mr Neysie was the driver of a Hilux van. A vehicle pulled out from a side street and there was a T-bone type impact. 
An ambulance attended and noted pain from multiple body parts including the left knee. 
Mr Neysie was treated at Ryde Hospital and was then discharged. He saw his general practitioner.
31.	At [10], Medical Assessor took a history of symptoms and treatment following the accident: 
“Mr Neysie said that he was treated with strong opioid analgesics for some time and it was only somewhat later that his knee pain and left shoulder pain became worse. 
There were multiple treatments to the left knee including PRP injections, cortisone injection and then arthroscopic surgery by Dr Gursel. 
Symptoms recurred and therefore Dr Gursel recommended further arthroscopic surgery to a meniscus. 
Mr Neysie said that Dr Gursel noted the left shoulder pain and referred him to Dr Yeoh, a shoulder orthopaedic surgeon. He said that Dr Yeoh had recommended surgery. 
Mr Neysie has had ongoing symptoms. He said he is distressed because his marriage has ended and the relationship with his children has changed. He said his business is not going well.”
32.	The current symptoms were listed by Medical Assessor Cameron at [12], and the current and proposed treatment at [13]. 
33.	Medical Assessor Cameron’s clinical examination is set out at [14]:
“Mr Neysie is right-handed, 186cm in height and weighs 93kg. 
Mr Neysie was co-operative. His mood was one of depression.
 At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative. 
There was a full range of motion at both shoulders. There was pain reported with movement of the left shoulder. 
There was a full range of motion at other upper extremity joints. 
There were no neurological abnormalities in the upper extremities. 
No difference in circumferences of the upper extremities was detected. 
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative. 
At the left knee range of movement was zero to 140 degrees. There was a full range of motion at the right knee. There was no crepitus or instability. 
There was a full range of motion at other lower extremity joints. 
There were no neurological abnormalities in the lower extremities. 
Thigh circumferences were right 48cm, left 47cm. 
Mr Neysie walked with a normal gait.”
Review of documentation 
34.	Medical Assessor Cameron provided a summary of the relevant documentation which he considered in his determination, including the ambulance report, clinical records of treating practitioners and rehabilitation services, medicolegal reports and reports of diagnostic investigations.  
Medical Assessor’s determination 
35.	Medical Assessor Cameron set out his determination at [18] and [19]: 
Treatment and Care – Causation 
[18] “It is not established that there were injuries of sufficient severity to justify further surgical treatment to these body parts. 
In addition, although there is pain from these body parts, function is reasonable. There is a significant risk that there would not be an improvement following the proposed surgery. 
Thus, causation with reference to the motor accident is not established.”
Treatment and Care – reasonable and necessary
[19] “As causation is not established and the treatments are not reasonable and necessary in relation to injuries sustained in the subject motor accident.”
36.	At [20] Medical Assessor Cameron concluded that the following treatment and care does not relate to the injuries caused by the accident: 
(a)	proposed left knee arthroscopy, and
(b)	the proposed left shoulder surgery. 
And the following treatment and care is not reasonable and necessary in the circumstances: 
(a)	proposed left knee arthroscopy, and
(b)	the proposed left shoulder surgery. 
EVICENCE BEFORE THE REVIEW PANEL
Photographs 
37.	Mr Neysie provided images of the scene of the accident, including the damage to the Toyota Hiace van he was driving and the car that had collided with his van.  
Records from Ryde Hospital 
38.	Mr Neysie attended Ryde Hospital after the accident, where he remained for a short time. 
39.	At the hospital, Mr Neysie complained of low back pain, neck pain and tenderness over his left scapular. The results of investigations at the hospital were negative for any fracture and he was discharged with diagnoses of soft tissue injury. 
40.	The CT scan conducted as part of the investigation was reported as follows: 
“Cervical Spine: Curve convex to the right and normal sagittal alignment. No fracture, subluxation or spondylosis, no prevertebral soft tissue swelling. No disc protrusion, canal stenosis or foraminal stenosis. 
Thoracolumbar Spine: Normal sagittal alignment. No fracture or subluxation. The vertebral bodies are normal in shape. No finding in the posterior elements. The disc spaces are maintained. No evidence of a disc protrusion, canal stenosis or foraminal stenosis. No paraspinal soft tissue thickening.”
41.	In the CMO Discharge Referral from Ryde Hospital, the document noted: 
“Presenting complaint: 
MVA 
…
Examination: 
Limbs: 
-	Left upper limb: 
(a)	Mild tenderness over wrist 
(b)	Wrist ROM reduced due to pain 
(c)	No visible bruising or swelling 
-	Lumbar spine: 
•	Mild tenderness low lumbar spine 
Impression: 
MVA- aggravation of old injury”
General practitioner clinical notes from Carlingford Court Medical Centre  
42.	Dr Ebrahimi examined Mr Neysie on 14 October 2019 and provided a diagnosis of back, neck and left knee injuries. He recorded: 
“has been having painful neck, back, left shoulder and left knee; had some tingling and numbness of his hands…” 
“on examination had limited ROM of his back w mild tenderness lower spines, neck mild global ROM, Lt shoulder full flexion and extension, abduction to 100-110 degrees…”
43.	Dr Ebrahimi prepared a report dated 12 January 2020. Dr Ebrahimi relevantly reported the following: 
“He suffered from the following conditions: 1. Back pain due to a small disc protrusion at L5/S1, 2. Left Knee due to medial meniscal tear, 3. Neck pain.”

Dr Ali Gursel, orthopaedic surgeon
44.	Dr Ali Gursel provided a report dated 23 October 2019. He reported:
“Examination 
On examination today he has asymmetrical musculature of his quadriceps and walks with a limp. He has a small effusion and decreased range of motion of the left knee. He has a stable knee to cruciate and collateral testing but the most remarkable finding is discomfort on moving the knee as well as being straight leg raising positive. 
Imaging 
His MRI scans show a horizontal cleavage tear of his medial meniscus posterior horn but a relatively preserved cartilage throughout all compartments. 
Treatment 
This gentleman's symptoms around the knee are related to his meniscal tear but also the weakness that he has on the left side possibly due to irritating his descending nerves from the lumbar spine. He is awaiting to be reviewed by a neurosurgeon, having had MRI scans of his lumbar spine which show central disc protrusion without obvious nerve impingement.”
45.	Dr Gursel provided a report dated 4 December 2019. He noted some improvement of symptoms, but that Mr Neysie was still experiencing discomfort when weight bearing for more than 15-20 minutes. Dr Gursel recommended platelet rich plasma injections.
46.	Dr Gursel provided a report dated 19 February 2020. He documented that Mr Neysie had had three such injections with some benefit. Dr Gursel recommended continued physiotherapy to regain quadriceps strength.
47.	Dr Gursel provided a report dated 22 April 2020. Dr Gursel reported a flare up of the lower lumbar spine symptoms which had impaired Mr Neysie’s ability to carry out knee exercises. He again recommended continued physiotherapy.
48.	Dr Gursel, provided a report dated 28 May 2020. He noted the following relevant information:
“The MRI scans of his left knee revealed a tear of his medial meniscus, with fortunately intact articular cartilage. This was managed non surgically with an intra-articular injection. He was also awaiting a review by a neurosurgeon with regards to his lumbar spine symptoms. 
His subsequent appointments revealed ongoing symptoms related to his lumbar spine as well as some weakness in his legs. He had three separate platelet rich plasma injections with some improvement of the intra-articular symptoms.
My most recent review was a telephone consultation on 22 April 2020 and during that time, his main symptoms were related to his lumbar spine. I have not been involved in the management of this gentleman's lumbar spine injuries as it is not my area of expertise. 
With regards to his knee pathology, he has a medial meniscal tear as a result of his accident and does not necessarily need surgical intervention, as his symptoms have improved. 
With regards to further treatment for the knee, ongoing physiotherapy and strengthening is recommended. He needs to optimise the function in his lumbar spine and I will leave it in the capable hands of the appropriate specialist in this area.”
49.	Dr Gursel, provided a report dated 24 February 2021. He reported the following relevant information:
“I reviewed this gentleman today on a semi-urgent basis as he has had significant pain and locking in his left knee which he had injured previously and was recovering very well from. 
On examination today he has 5° of fixed flexion deformity, marked pain in the medial joint line and is McMurray's positive. His quadriceps tone is diminished. 
This gentleman seems to have retorn his medial meniscus and as such, requires further imaging in the form of an MRI scan.”
50.	Dr Gursel provided a report dated 10 March 2021. He noted: 
“I had a long discussion with him, having tried activity modification, intra-articular corticosteroid injections, intra-articular platelet rich plasma injections, strengthening, taping, physiotherapy and seeing an exercise physiologist. He now has exhausted all non-surgical measures. 
With this in mind, he requires arthroscopic attention to deal with the meniscal tear to allow him to get back to normal activities without any restrictions.”
51.	Dr Gursel provided a report dated 27 April 2021. He reported the following relevant information:
“I reviewed this gentleman today having performed his knee arthroscopy and meniscal repair nearly two weeks ago now. 
He has had some pain on weight bearing in the medial aspect of his knee consistent with his meniscal repair. 
On examination today he has a small effusion, slightly decreased quadriceps tone and well healing portals. He needs to start some physiotherapy to regain his strength and confidence.”
MRI of the left knee 
52.	An MRI scan of the left knee, dated 9 October 2019, reported a horizontal cleavage tear in the posterior third of the medial meniscus. 
53.	An MRI scan of the left knee report dated 25 February 2021 reported intrasubstance degeneration and focal undersurface tear involving the posterior horn of the medial meniscus. Chondral softening and heterogeneity of the articular cartilage within the lateral aspect of the patella. 
54.	An MRI scan of the left knee report dated 2 March 2021 reported a degeneration and focal undersurface tear involving the posterior horn of the medial meniscus. There was also chondral softening and heterogeneity of the articular cartilage in the patella/apex with a sub-ITB oedema.
55.	The MRI scan of the left knee report dated 28 July 2022 reported that there was a medial meniscal tear with a displaced flap component and a joint effusion.
Dr Timothy Yeoh, shoulder and knee surgeon 
56.	On 29 August 2022, Dr Yeoh examined Mr Neysie and reported: 
“He has had troubles with his left shoulder increasingly over the last 2 years. It is particularly worse since he went back to work. He feels predominantly in the front of the shoulder and he feels that it is weak and he cannot trust it anymore. The shoulder was previously normal prior to the injury in 2019. 
Examination shows anterior bicipital tenderness and posterior glenohumeral tenderness. His range of motion is 120° of elevation, 60° of external rotation, and internal rotation to T12. There is bicipital pain and labral irritation. The rotator cuff is strong. He is neurovascularly intact.
…
The tear configuration is such that it has formed a one-way valve that is causing an increasingly large cyst that is symptomatic. I have recommended that he undergo an arthroscopic labral repair with decompression of the paralabral cyst.”
57.	In the report of Dr Yeoh, dated 29 August 22, he comments on the MRI of the left shoulder: 
“I reviewed his MRI scan and it shows an anterior/ inferior and posteroinferior labral tear with a posterior paralabral cyst…”
MRI of the left shoulder 
58.	An MRI report of the left shoulder, dated 28 July 2022 was reported: 
“FINDINGS: 
The long head of biceps tendon, subscapularis tendon, supraspinatus and infraspinatus tendons are intact with minimal cuff tendinosis. 
The AC joint has a normal appearance. 
There is an inferior labral tear from the 4 o'clock position through to the 8 o'clock position posteriorly with paralabral cysts at the 6-7 o'clock position in the order of 13mm. 
No arthropathy is present at the glenohumeral joint. No capsulitis is present. 
COMMENT: 
Labral tear with paralabral cysts as described. No cuff tear.”
Medicolegal report of Dr Tania Rogers, Occupational Physician 
59.	On 24 October 2022, Dr Rogers examined Mr Neysie and provided her opinion that: 
“There is good evidence that Mr Benykhelyfy (Neysie) complained of lower back pain, neck pain and left knee pain soon after the subject motor accident. In my opinion he sustained a soft tissue injury of the cervical spine which has resolved. In relation to the lumbar spine there is a pre-existing history of lower back symptoms. I consider that he aggravated pre-existing degenerative changes in the lumbar spine. The car was hit from the side, therefore it is possible that his knee was subject to rotational forces. Another possibility is that he aggravated an asymptomatic pre-existing meniscal tear. In any case, I would have to say that the subject motor accident is a contributing cause which is not negligible in regards to the left knee injury. 
In my opinion there is no good evidence of an ongoing left shoulder injury. There was a significant gap in time between initial complaints of left shoulder pain and further complaints in 2022. He was seat belted over the right shoulder. Mr Benykhelyfy stated that the pain increased at work. There is no mechanism of injury evident. In my opinion the left shoulder labral tear is work related.”
SUBMISSIONS
Claimant’s submissions, dated 22 September 2023
60.	Mr Neysie sought a review of the Medical Assessor’s certificate on the basis that it was incorrect in a material respect pursuant s 7.26 (1) of the Motor Accident Injuries Act 2017.
61.	The grounds of appeal in relation to the subject certificate upon which the claimant relied on are: 
(a)	the Medical Assessor misapplied the tests for causation with respect to determining whether the treatment in dispute was causally related to the subject accident. In doing so, the Medical Assessor had acted ultra vires. He consequently failed to provide adequate reasoning and incorrectly referred to whether the treatment in question would improve the claimant’s condition as opposed to considering questions relevant to causation. Mr Neysie submits the assessor incorrectly performed his duties and functions as a Medical Assessor;
(b)	the Medical Assessor failed to adequately take into account the material before him, particularly, the records from treating specialists Dr Gursel and Dr Yeoh, and
(c)	the Medical Assessor also misapplied the second test of a treatment dispute, being whether the treatment in question is reasonable and necessary in the circumstances. It does not necessarily follow that if causation was not established then the treatment would neither be reasonable nor necessary. A Medical Assessor is still required to provide adequate reasoning in that regard.
The test for treatment - causation
62.	Mr Neysie submitted that the Medical Assessor misapplied the test for causation by incorrectly attributing whether the proposed treatment would improve the claimant's condition as opposed to drawing upon the relevant causation principles.
63.	The Medical Assessor was required to provide adequate reasoning to demonstrate that he has taken into account the claimant's condition in determining whether the treatment in dispute is causally related to the accident.
64.	Mr Neysie submitted that the Medical Assessor listed out the material before him but provided no path of reasoning as to how he came to the conclusion that the claimant's injuries were not of “sufficient severity” to justify the further surgical treatment that was proposed to the left knee and to the left shoulder.
65.	The Medical Assessor's duty involves asking relevant questions during assessment so as to not deny him procedural fairness. The Medical Assessor ought to have discussed that the claimant seemed to have reasonable functioning and ask why the claimant was seeking this particular surgery in his left knee and left shoulder.
The test for treatment - reasonable and necessary
66.	Mr Neysie submitted that the Medical Assessor has not provided adequate reasoning in respect of this limb. The Medical Assessor has made a material error as he tried to keep discussions short and limited the scope of his discussion as to whether the treatment was causally related and did not consider the treatment in question was reasonable and necessary in the circumstances. 
Insurer’s submissions in reply, dated 12 October 2023
Failure to consider all the medical evidence
67.	AAMI disputed that the Medical Assessor failed to have proper regard to the evidence and material before him.
68.	AAMI noted that Medical Assessors are not required to address each and every opinion and/or explain why particular conclusions were not adopted: Wehbe v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 1506
69.	AAMI submitted that issues as to how much weight ought to be given to any piece of evidence is ultimately a determination for the Medical Assessor to make, using medical expertise and forensic decision making.
Failed to apply the proper “test of treatment” and failed to provide adequate reasoning
70.	AAMI submitted there is no particular ‘test of treatment’ set out in the legislation and the guidelines.
71.	The issue for determination by Medical Assessor Cameron is whether the treatment is reasonable and necessary in the circumstances or relates to the injury caused by the accident for the purposes of s 3.24 (Entitlement to statutory benefits for treatment and care).
72.	In particular, Medical Assessor Cameron considered the totality of the evidence before him and conducted an examination of the claimant, and using his clinical skill and judgment he diagnosed Mr Neysie with soft tissue injuries to the left shoulder, left knee and lumbar spine.
73.	Based on his detailed assessment of the claimant and using his clinical skill and judgment, Medical Assessor Cameron concluded the injuries were not of sufficient severity to justify further surgical treatment.
74.	AAMI submitted that Medical Assessor Cameron did not consider the treatment reasonable and necessary, as he had already concluded that the treatment was not related to injuries caused by the accident. He provided a clear path of reasoning. If Mr Neysie requires treatment, the need for same is unrelated to the subject accident.
Medical examination by the Review Panel 
75.	Medical Assessors Geoffrey Stubbs and Sophia Lahz examined Mr Neysie on 17 April 2024. 
76.	Each of the Medical Assessors provided their own set of reasons arriving at the same conclusions and are provided below. 
Medical Assessor Lahz 
History
77.	The Medical Assessors took a pre-accident history of Mr Neysie. 
78.	Mr Neysie was born in Iran and moved to Australia in 2010. After arrival, he worked as a ‘tradie’, having existing skills from training in his own country. Later, he became an auto mechanic, and this was the employment he had at the time of the accident.
79.	His marriage ended a few months after the accident. 
80.	Predating the 2019 accident, Mr Neysie reported good general health. He confirmed a lower back injury from a motor accident in 2013, following which he sometimes took pain medication. He told the Medical Assessors there had been a diagnosis of lumbar spine soft tissue injury. The Medical Assessors also noted another motor accident in 2021, although the documents indicated that he did not injure either the left shoulder or the left knee, in that motor accident. 
81.	Mr Neysie also had a diagnosis of Thalassemia minor made several years ago. 
Previous symptoms 
82.	The Medical Assessors drew to Mr Neysie’s attention reference to previous symptoms in the left knee (2018) and left shoulder (possibly 2018), although he said he did not recall these episodes. 
83.	Mr Neysie confirmed that even if there had been any transient symptoms at the left knee or else the left shoulder, there were no ongoing issues, certainly nothing for which he had consulted a doctor, and nothing which had caused interference with his employment as a car mechanic. 

The motor accident 
84.	Mr Neysie confirmed his involvement in the accident on 3 August 2019. 
85.	At the time, he was driving a Hiace van when there was a collision between the front left side of his vehicle and the front right side of the other. He described a “T-bone” collision. He told the Medical Assessor’s that the vehicle became deviated toward the right, the lateral aspect of the left knee struck the gear selector whilst the left shoulder was forcibly jerked due to both hands firmly gripping the steering wheel. He had noted that the seatbelt passed over the front of the right shoulder. 
86.	Mr Neysie reported to the Medical Assessors that for the initial 10-15 minutes after the motor accident, there was global numbness of the left leg. These symptoms slowly resolved although the left great toe has remained numb. 
87.	Mr Neysie told the Medical Assessors that he was assisted from the van by bystanders. The police and ambulance attended, and he was taken to Ryde Hospital where he remained for a short time. 
88.	At hospital the same day, he complained of low back pain, neck pain and tenderness over the left scapula. Investigations did not indicate any fractures, and he was discharged with diagnoses made of soft tissue injury. 
89.	Mr Neysie saw his general practitioner (GP) on 4 August 2019, with complaints of left shoulder pain and left knee pain. At the time, there was motion restriction at the left shoulder noted with 100-110 degrees of elevation. 
History of symptoms 
90.	Mr Neysie told the Medical Assessors he experienced ongoing symptoms in the left knee and left shoulder girdle after the accident. He said that the left knee complaints took precedence because he was not working, thereby not imposing any significant physical strain on the left shoulder. 
91.	Mr Neysie explained that after the accident, there was always pain running between the left shoulder and the neck. In the early days, he in fact ascribed left shoulder symptoms to symptoms referred from the neck. 
92.	Due to persistent pain at the left knee and left shoulder (as well as low back pain) he sought help with gardening. His marriage ended and he went to live with his parents for about 12 months. He is now back living with his family despite formal separation from his wife. 
93.	Mr Neysie blames the accident for his prolonged work absence (2-3 years) from automotive mechanical duties. He also blames the accident for the end of his marriage. He always felt that AAMI treated him as though he were lying, and on this basis, he sought assistance from a psychologist whom he credited as helping him slowly rebuild his life.
94.	Mr Neysie resumed auto mechanic work after many months following the accident. He struggled with heavy mechanical tasks and explained that due to persistent left knee and left shoulder problems, he could not perform the expected functions of a mechanic. Consequently, he decided to establish his own auto repair/servicing business. He now has two employees and confines himself to the lighter duties such as registration inspections for the pink slip. 
95.	For the left (medial) knee pain, in 2019, the GP referred him to Dr Gursel, an orthopaedic surgeon. An MRI scan on 9 October 2019 demonstrated a horizontal cleavage tear of the medial meniscus. Dr Gursel arranged a steroid injection to the left knee and subsequently, Mr Neysie also received a series of PRP (platelet rich plasma) injections.
96.	In addition, Mr Neysie received physiotherapy to the left knee. However, sharp pain over the medial knee continued, culminating in arthroscopic surgery for medial meniscus repair in April 2021. Mr Neysie said that the left knee symptoms improved post-operatively, remaining reasonable for around 12 months. 
97.	Mr Neysie told the examiners that by early to mid-2022, left knee symptoms had recurred and become much worse. There was greater medial joint pain associated with joint catching. There were also sensations of knee instability and Mr Neysie was concerned by his knee giving way although there was no frank joint locking. 
98.	Mr Neysie underwent a progress left knee MRI scan in 2022 which showed the meniscal tear with an unstable, displaced flap. On review Dr Gursel recommended further surgery for repair of the medial meniscus, although the surgery has not yet occurred due to this treatment dispute.
Current symptoms
99.	Ongoing, Mr Neysie has continued to complain of pain over the medial lateral aspects of the left knee. He is prone to limping and the knee feels unstable. 
100.	Mr Neysie complained of persistent left shoulder pain associated with difficulties in upper limb elevation. The Medical Assessors questioned him about the lack of ongoing left shoulder complaint to his doctors after the accident, notwithstanding the references in the contemporaneous records to left shoulder pain. Mr Neysie explained that after the 2019 accident, there was always discomfort about the left shoulder girdle. However, it was only when he started working again, that the left shoulder pain intensified, and he sought medical help. The treating knee surgeon referred him to Dr Yeoh, a shoulder surgeon. 
101.	An MRI of the left shoulder in 2022, showed a labral tear associated with cysts. A labral repair was recommended although Mr Neysie has not proceeded due to this treatment dispute. 
102.	Ongoing, there is pain about the left upper medial scapula and trapezius worsened by left arm elevation as well as by heavy lifting/carrying/loading of the left arm. 
103.	Mr Neysie would like to proceed with both recommended left knee and left shoulder surgery although he does not wish to undergo the recommended lower back surgery due to the scale and risks of the latter operation.
104.	He continues to experience left-sided (electric character) low back pain with radiation to the ipsilateral buttock and posterior thigh but not below the knee. He reported as well that the left big toe remained numb.
Clinical examination
105.	Mr Neysie was 187cm in height, with mild central adiposity and 95.1kg. 
106.	He presented in a very straightforward manner during the interview and examination. 
107.	Gait was unremarkable. He was able to walk hesitantly on tiptoe and even more cautiously, a few steps on his heels (with complaint of left knee pain).
108.	He could hop on the right leg and also hop on the left leg (awkwardly with complaint of left knee pain). 
109.	He was able to perform 4/5 normal squat, with discomfort. 
110.	Trendelenburg tests were bilaterally negative. 
111.	There was a very satisfactory range of neck movement, with neck movements not inducing any discomfort about the left shoulder girdle.
112.	There was no visible wasting/asymmetry of the shoulder girdles.
113.	Compression of the head induced complaint of discomfort about the left shoulder girdle/scapula.
114.	The right shoulder examination was normal. 
Left shoulder
115.	Clinically, there was irritability about the upper medial border of the left scapula at the origin of the levator scapulae and over the rhomboids. There was also some sensitivity on pinching the left trapezius. 
116.	There was tenderness of the left posterior glenoid below the level of the scapular spine in the infraspinatus region. 
117.	In the erect position, there were 100 degrees of active left shoulder flexion and 90 degrees of active abduction. In supine (thereby eliminating any contribution of the neck to symptoms), the shoulder movements were similar with 120 degrees of flexion, 80 degrees of abduction, and satisfactory external and internal rotation. 
118.	Mr Neysie could only reach the left hand behind to L3 whereas, with the right, he could reach T8.
119.	The left shoulder joint was clinically stable. There were positive left-sided impingement signs (O’Brien’s) test. There was left shoulder pain with composite extension/internal rotation although isolated extension was pain free. 
Lumbar spine
120.	Lumbar spine movements were preserved with demonstrable ability to reach fingertips to ankles and laterally flex to either side, fingertips reaching 2cm below the fibular head. 
121.	There was full thoracic rotation to either side. 
122.	The right knee examined normally.
123.	There were 1.5cm wasting of the left quadriceps (53.5cm) compared with the right (55cm) 
15cm above the superior patellar border. The girths of the knees were similar at mid patellar level (left 40cm and right 40.5cm). There were 2cm wasting of the right mid-calf (39cm) compared with 41cm at the left mid-calf. The Medical Assessors ascribe the latter difference to Mr Neysie walking left-sided tiptoe over a prolonged period due to knee pain. (In other words, the left calf is being overused by walking on tiptoe, being thereby made larger than the right.)
Left knee
124.	Active left knee flexion and extension were of full range. At the left knee there was retropatellar crepitus.  There was no joint effusion although there was mild knee varus/valgus laxity with tenderness at the medial joint line. The knee was stable in the anteroposterior plane. There was a strongly positive McMurray’s test consistent with known meniscal pathology. 

Conclusion
Left knee 
125.	The Medical Assessors found the mechanism of left knee injury (versus gear selector) in the accident convincing. There was no evidence that Mr Neysie was experiencing left knee symptoms immediately prior to the accident, whereas since this time, he had consistently complained of left knee pain, with multiple references to same, in GP, specialist and physiotherapy records. 
126.	A left knee MRI during October 2019 clearly demonstrated a tear of the medial meniscus.
127.	The clinical examination of the left knee showed that there was two centimetres of wasting of the right mid- calf (39cm) compared with 41cm at the left mid-calf, noting that the Medical Assessors described the difference to Mr Neysie walking left- side tip toe over a prolonged period, due to knee pain. In other words, the left calf was being overused by walking on tip toe, thereby making it larger compared with the right. 
128.	The Medical Assessors found Mr Neysie’s ongoing symptomatic complaints and examination findings at the left knee due to (re)tearing of the medial meniscus. A progress left knee MRI in 2022 showed a medial meniscal tear with an unstable flap.
129.	The Medical Assessors noted that Mr Neysie had undergone one left knee surgical procedure for repair of the meniscus during 2021 and have determined that the second (proposed) knee operation for further meniscal repair (2022 proposal) is related to and reasonable and necessary due to the accident, given the presence of an initial medial meniscal injury, thus rendering it more vulnerable to further injury. 
130.	The Medical Assessors determined that but for the accident, Mr Neysie would not have required a second knee surgical procedure for meniscal repair. 
Left shoulder
131.	Regarding the claimed left shoulder injury, the Medical Assessors considered a possible explanation of the mechanism of injury (for the labral tear) in the accident. He had been gripping the steering wheel with both hands when the left shoulder was suddenly jolted forwards. 
132.	As noted, the Medical Assessors asked Mr Neysie about the absence of left shoulder complaints in medical records for many months post motor accident, until mid-2020, notwithstanding the contemporaneous documentation in medical records of left shoulder girdle pain. 
133.	Mr Neysie also provided an explanation in that he was off work for a prolonged period after the accident, during which period there was always some level of discomfort about the left shoulder girdle. However, it was only when he resumed auto mechanic work about 2.5 years post-accident that the left shoulder symptoms became more prominent, causing the knee surgeon to then refer him to a shoulder surgeon for consideration of surgery to a left shoulder labral tear. After further consideration of the facts, the Panel concluded it was however not satisfied on causation. 
134.	Mr Neysie did not bring any film of either the left shoulder or the left knee to the appointment. The Panel had requested the film for their review. 
Report by Medical Assessor Stubbs 
135.	The report of Medical Assessor Stubbs was completed after receipt of and consideration given to the X-ray/ scans of the left knee and left shoulder. 
Background 
136.	Mr Neysie was 38 years. 
137.	He was born in Tehran and came to Australia via Indonesia in 2010. 
138.	The political situation was very unstable and he was having trouble finding regular work in his trade of metal fabrication and welding. 
139.	He was involved in a rear end motor vehicle accident in 2013 and developed low back pain. The third-party claim settled for a modest amount in his favour. 
140.	He experienced low back pain flareup from time to time. 
141.	In 2015, he was diagnosed as having Thalassaemia minor. 
142.	He started work as a motor mechanic in 2015.
143.	He is divorced from his wife, but they live together in a three-bedroom single story home with the two children. Both work.
144.	At the time of the motor vehicle accident, he was running a general mechanical repair shop and service centre with two full-time employees to do the heavy work as his back would still trouble him. He said that he had suffered no other injuries and was not taking any regular medication though he did take nonsteroidal anti-inflammatory agents from time to time. He was seeing a chiropractor about his left shoulder. He did not recall a prior consultation with his general practitioner about the shoulder in May 2018.

History of the motor accident 
145.	The accident occurred on 3 August 2019. He was driving a client’s van. A parked car pulled out in front of him causing contact between the driver’s side front of the car and the passenger side front of the van. He recalled bracing himself strongly at the time of the accident. He was thrown about inside the cabin and struck his left knee on the centre consul/gearshift. Ambulance and police attended the scene of the accident, and he was transferred to Ryde Hospital. He was assessed there and allowed home. 
146.	He went initially to his parents’ house in Eastwood and saw his regular practitioner the following day. His neck pain became worse the following week and his GP Dr Ebrehimi referred him for an MRI of the cervical spine and subsequently imaging to the low back and left knee.
147.	Mr Neysie was referred to Dr Effekhar for an opinion about his back. Physiotherapy and injection into the low back was advised. He did not proceed with the lumbar spine injection. He also saw Dr Ali Gursel an orthopaedic surgeon about his knee, 2-3 plasma rich protein zone injections were given along with a cortisone injection in 2020. Dr Gursel advised arthroscopy. He made a partial return to work and did receive weekly benefits from AAMI which reduced to $300 a week in May 2020. In July 2020, he was changing brake pads and experienced an increase in the level of low back pain. He had a further MRI performed in April 2021. An arthroscopic meniscal repair was performed by Dr Gursel in 2021 which substantially improved his position for about 12 months, but symptoms of pain from turning and squatting had returned.
148.	The present situation – he was awaiting a second arthroscopic meniscal repair in the left knee. The first repair seemed to have broken down. His left shoulder gave him symptoms particularly with overhead use. It sometimes would click and was uncomfortable to lie on. The right knee was sore and uncomfortable, Mr Neysie put this down to increased use. His neck had improved. The back remained uncomfortable and limited his ability to do heavy lifting but he had decided not to proceed with surgery to the spine.
Physical examination
149.	General – Mr Neysie was a well-presented man dressed in casual clothing. He attended the Commission’s rooms by himself. He stood at 185cm tall and weighed 98kg. He was fully cooperative in the clinical examination. He could tip toe and heel toe walk, and could stand with good balance on either leg and hop. However, he had pain and crepitus when attempting to squat. This was limited to about 60° of knee flexion under body weight.
Cervical spine 
150.	The cervical spine showed a normal range of movement without spasm or guarding. Reflexes were brisk and symmetrical, and the girth of the forearm and arm were within ½ cm of each other, slightly more on the right indicating right hand dominance. Motor strength was 5/5. There was no disturbance of sensation and no indications of carpal or cubital tunnel compression. Provocative tests were negative.
Lumbar spine
151.	There was full movement in all directions. There was some tenderness in the lumbar spinal musculature to firm pressure but no guarding or spasm. Knee extension was full when sitting, straight leg raising was 70° right equals left with a negative traction sign. The reflexes were brisk and symmetrical, sensation was normal.
Upper limbs
152.	Upper limbs were normal apart from some mild restrictions in flexion and abduction with accompanying tenderness over the posterior joint margins of the left shoulder. The loss of movement was around 20° compared to the right. All of the other shoulder movements were unrestricted and comfortable. Provocative testing was negative. There was local tenderness in the posterior glenoid labrum on the left corresponding to the region of the labral cysts reported on the MRI of 28 July 2022. A possible injury to the left thumb had healed. All of the other upper limb joints had full range of movement and normal stability. Strength was 5/5 in all motor groups except resisted flexion of the left shoulder.
Lower limbs
153.	The lower limbs were normal with the exception of the left knee. There was noticeable crepitus on the left knee, and marked tenderness on patella compression. The knee was stable in flexion and extension and varus/valgus movements and the cruciate ligaments are intact. There was however tenderness over the medial joint line most marked posteriorly which was increased by rotary movements – a positive McMurray’s test. No effusion was detected in the present examination but apparently the knee did swell from time to time. When standing Mr Neysie has a positive Tietzes’ test which matched the positive McMurray sign when supine. There was marginal wasting of the left quadriceps, less than 1cm and the quadriceps tone was not as firm on the left side as the right with maximal contraction. Reflexes were brisk and symmetrical, joint range was normal including the knee with unloaded flexion and extension.
154.	Radiological studies reviewed – PRP diagnostic imaging x-ray of the left hand, 
20 September 2021, at the request of Prof Al Muderis – found right thumb through a partial thumb spica. The plaster obscured the fine detail. All the joints had a normal alignment, no fracture is seen.
155.	PRP diagnostic imaging, MRI of the left shoulder 28 July 2022. This study was normal except for the posterior inferior labrum of the glenoid. There was synovial fluid penetrating underneath the labrum which formed a large extra articular cyst that pushed into the infraspinatus muscle. This had the same appearance as was seen in the supra glenoid cysts in association with superior labral tear. The system developed very slowly and represented some past injury. The cyst was at exactly the place that the examiner found tenderness to firm palpation. 
156.	Cysts in the posterior position are less common than cysts in the superior position because labral detachment which allow formation of the diverticulum is less common. They are typically late manifestations of injury with the injury itself being of no particular consequence at the time. It was nearly three years from the time of the accident, and the initiating event probably predated the accident.
157.	PRP imaging, MRI left knee 28 July 2022 at the request of Dr Ali Gural. There was posterior third horizontal cleavage tear in the medial meniscus connecting with the joint with the para meniscal cyst spreading into the popliteal fossa but not exactly a Baker’s cyst. There is a modest medial and patelofemoral chondral ware. The fluid track is continuous, and the previous meniscal repair has failed. Given the minimal damage to the rest of the knee a further attempt chondral suture seems reasonable.
158.	The Panel considered that the dispute to be determined was whether the knee surgery was related to the accident and whether it was reasonable and necessary. The Panel determined that it was. As the shoulder lesion was older, this likely represented a fall onto the outstretched arms at some indeterminate period in the past, not due to the motor vehicle accident.
159.	Apart from the meniscal tear, his knee is in good shape so far, the tear would heal, and the knee should stay in good shape. A horizontal tear that extends to the outer third is usually a good sign for meniscal repair however, he has a large associated cyst which is a negative indication for meniscal repair. 
160.	The Panel considered that the surgery could be done and that it should be done openly. Medical Assessor Stubbs opined that he would want to excise the synovial cyst to improve the chances of repair but not operating. 
Consideration of the parties’ submissions
161.	The insurer submitted there is no particular ‘test of treatment’ set out in the legislation and the guidelines.
Causation
162.	The insurer submitted that Medical Assessor Cameron did not consider the treatment reasonable and necessary, as he had already concluded that the treatment was not related to injuries caused by the accident. 
163.	The Review Panel considered the pre-accident history, the history of the motor accident and the relevant medical history, treatment, radiological imaging, and the results of the physical examination in order to address the matter of causation according to cl 6.6 of the Guidelines. 
Causation of the left knee injury
164.	The Panel conducted an examination and found there was evidence of an unstable medial meniscal tear in the left knee. There was also crepitus. There was a history of striking the left knee against the centre console which would account for the crepitus from a direct blow. It was more difficult to explain the presence of a medial meniscal tear. These injuries were unusual in motor vehicle accidents. However, physical signs were consistent with an unstable medial meniscal tear and there were MRI studies of February 2021 and July 2022, confirming the presence of a meniscal tear. The balance of probabilities favoured a left knee injury from the accident that contributed to the meniscal tear.
165.	Orthopaedic best practice was to repair tears of the meniscus. Tears tend to increase with time and become more unstable. Repair was preferred to meniscal resection if possible since the future risk of osteoarthritis was increased by extensive meniscal resection. Meniscal repair by suture was not always successful but was worth repeating as if meniscal healing could be achieved, the long-term prospects for good knee function are improved.
166.	The Panel noted that Dr Tania Rogers, referred to the car being hit from the side and that therefore it was possible that Mr Neysie’s left knee was subject to rotational force. She also referred to the possibility that he aggravated an asymptomatic pre-existing meniscal tear. In any event, she was of the view (which the Panel agrees) that the accident was the contributing cause which was not negligible in regard to the left knee injury. Medical Assessor Lahz noted (see para 85 above) that Mr Neysie described a “T-bone” collision, telling the Medical Assessors that the vehicle had deviated towards the right, and the lateral aspect of his knee had struck the gear selector.  
167.	The Medical Assessors noted that on clinical examination, Mr Neysie was able to walk hesitantly on tip toe, with complaint of left knee pain. Whereas since that time, he had consistently complained of left knee pain with multiple references to the same in the GP records, and the specialist and physiotherapy records. 
168.	Further, a left knee MRI during October 2019 clearly demonstrated a tear of the medial meniscus and considered that it was likely that this was the cause of Mr Neysie’s ongoing symptomatic complaints and the examination findings. 
169.	For the consideration of whether or not there were clinical signs justifying a determination that the proposed treatment was reasonable and necessary in accordance with the guidelines, the Review Panel took into account, the examination on the day and on this day, the examination of Mr Neysie observed by the Medical Assessors confirmed the presence of a meniscal tear which required treatment. 
170.	The Medical Assessors considered that the initial medial meniscus injury but for the subject accident, would not have required further knee surgery for meniscal repair, and that surgery to repair the tear was reasonable and necessary.
Causation of the shoulder injury
171.	Dr Yeoh wrote in reference to the posterior labral tear. He said that the tear configuration was such that it had formed a one-way valve that was causing an increasingly large cyst that was symptomatic. He recommended that Mr Neysie undergo an arthroscopic labral repair with decompression of the paralabral cyst. The Panel agreed with his explanation of how the cyst formed in the proposed treatment, however the question of causation depended on how and where the labral tear occurred, and when it occurred.
172.	Posterior labral tears are uncommon and caused by posterior subluxation of the humeral head on the glenoid, the socket of the shoulder blade. This is due to a direct posterior force. Superior labral tears are much more frequent injuries, and the direction of force moves the humeral head upwards, such as a fall on the outstretched hands. The same process occurs, joint fluid is pushed into the muscles and forms a slowly enlarging supra glenoid cyst. The labral detachment itself results in a transient and easily forgotten injury and does not, of itself, cause shoulder dysfunction. Eventually the cyst gets large enough to compress the supra clavicular nerve and the person presents with vague shoulder discomfort and progressive weakness. The initiating injury is usually forgotten.
173.	In the case of the posterior glenoid cyst such as Mr Neysie has, there is no nerve to be compressed and symptoms are unlikely but may develop eventually if the cyst is large as 
Mr Neysie’s cyst is. Posterior labral cysts are usually discovered as an incidental finding on an MRI or ultrasound performed for some other shoulder problem. Mr Neysie had local tenderness over the large cyst, and the Panel agreed that the cyst was the cause of the tenderness found on clinical examination. 
174.	The Panel did not think that the accident caused the labral tear and initiated the cyst. The mechanism of injury did not fit a forceful posterior translocation of the humeral head and the time interval for the cyst to get large enough to cause symptoms is much longer than the period between the development of symptoms and the date of the accident.
Determination 
175.	The Review Panel revokes the certificate of Medical Assessor Cameron dated 
26 August 2023. 
176.	The Review Panel substitutes the determination and issues a new certificate to certify that:
•	the proposed treatment and care for left knee arthroscopy surgery does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances, and
•	the proposed treatment and care for left shoulder surgery does not relate to the injury caused by the motor accident.