Ahmed v Insurance Australia Limited t/as NRMA Insurance (No 1 and 2)

DETERMINATION OF REVIEW PANEL
CITATION:	Ahmed v Insurance Australia Limited t/as NRMA Insurance (No 1 and 2) [2023] NSWPICMP 586
CLAIMANT:	Rehana Ahmed
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Lauren Alach
DATE OF DECISION:	13 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; assessment of treatment (domestic care and assistance); Medical Assessor (MA) Cameron had assessed that some of the disputed care was related to the injuries caused by the accident and MA Davidson assessed the amount of care that was reasonable and necessary in the circumstances; motor accident occurred more than 10 years ago; claimant alleged injuries to her neck, back, chest shoulders and at times knees and feet; claimant said she had been unable to perform any domestic duties since the day of the accident and had required more than 12 hours of care per day; claimant’s application for review under section 63 of both decisions was referred to two Panels comprising the same members; Held – Panel determined to hear both matters together; Panel satisfied claimant sustained soft tissue injuries to her neck and back causing symptoms in the shoulders but no frank or specific injury to the shoulders; Panel not satisfied claimant injured her knees or feet; Panel found some treatment related to the injuries sustained in the accident but a different amount of treatment was reasonable and necessary; current regime of care allegedly provided unreasonable and some care related to other conditions including bladder cancer; both certificates revoked; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. In proceedings R-M10507203/22 revokes the certificate issued by Medical Assessor Cameron dated 5 April 2022. 2. In proceedings R-M10540592/22 revokes the certificate issued by Medical Assessor Davidson dated 22 September 2022. 3. Certifies as follows in respect of the claimant’s physical bodily injuries: (a) some of the treatment (care and domestic assistance) provided to the claimant after the accident until 21 August 2014 is reasonable and necessary in the circumstances; (b) none of the treatment (care and domestic assistance) provided or to be provided to the claimant beyond 21 August 2014 is reasonable and necessary in the circumstances; (c) a reasonable level of necessary care and assistance between the date of the accident and 21 August 2014 is 8.5 hours a week (for the first 12 weeks), 6 hours a week (for the next 12 weeks) and 3 hours a week (for the next six months), and (d) the treatment (care and assistance) certified is related to the injuries caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

Mrs Ahmed was involved in a motor accident on 21 August 2013. She was a passenger in the last car involved in a three-car collision on the M5 motorway. The first vehicle had stopped suddenly, vehicle two ran into the rear of vehicle one and vehicle three (the car

Mrs Ahmed was in) ran into the rear of vehicle two.
The claimant says she injured her neck, back, shoulders and chest in the accident. On or about 23 March 2014 she made a claim for damages against NRMA, the third-party insurer the vehicle Mrs Ahmed says caused her accident.
Because of the date of Mrs Ahmed’s accident, her claim for damages and her entitlement to damages is covered by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
A number of disputes have arisen in the course of this claim which have been referred for resolution, assessment and determination by the former units of the State Insurance Regulatory Authority (SIRA) as follows:
(a) on 27 August 2020, the claimant referred to the Medical Assessment Service (MAS) an application to determine a medical assessment matter under s 58(1)(c) of the MAC Act, namely the degree of the claimant’s whole person impairment (WPI);
(b) on 4 November 2020 the claimant referred to the Claims Assessment and Resolution Service (CARS) an application for assessment of the quantum of the damages flowing from her injuries and losses caused by the accident, and
(c) on 22 February 2021 the insurer lodged with the MAS an application to determine two medical assessment matters:
(i)under s 58(1)(a) of the MAC Act whether the domestic care and assistance (for which damages were claimed) is reasonable and necessary in the circumstances, and
(ii)under s 58(1)(b) of the MAC Act whether certain domestic care and assistance is related to the injuries caused by the accident.
At the time that the Personal Injury Commission (the Commission) commenced on 1 March 2021 none of the above matters had been determined. MAS and CARS were abolished, and the resolution, assessment and determination of the above disputes is now a matter for the Commission.
On 5 April 2022, Medical Assessor Cameron determined the medical assessment matter referred under s 58(1)(b) finding that some of the past and future care and assistance in dispute was related to the accident.
On 22 September 2022, Medical Assessor Davidson determined the medical assessment matter referred under s 58(1)(a) being the amount of past and future care and assistance that was reasonable and necessary in the circumstances.
The claimant has lodged two applications with the Commission seeking a review of each of those determinations:
(a) R-M 10507203/22 – the subject of these proceedings is the assessment of Medical Assessor Cameron, and
(b) R-M 10540592/22 – the subject of these proceedings is the assessment of Medical Assessor Davidson.
On 12 August 2022, Ms Wigan, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in Medical Assessor Cameron’s assessment and allowed the Review.
On 28 November 2022, Ms Brittliff, also a delegate of the President, determined there was reasonable cause to suspect a material error in Medical Assessor Davidson’s assessment and allowed that Review.
On 8 February 2023, the President convened two Panels comprising the same Member and Medical Assessors to conduct the two Reviews.[1]
[1] For the sake of simplicity while two separate Panels have been convened to hear the two separate Reviews, as the members of the Panels are the same, the Panels will refer to Panel in the singular in these reasons.
On 22 March 2023, the Panel met and determined they would hear both Reviews together due to the overlapping issues and common subject matter.

LEGISLATIVE FRAMEWORK AND BACKGROUND

General

Mrs Ahmed’s claim and her entitlement to compensation is governed by the provisions of the MAC Act.
Damages for Mrs Ahmed’s economic losses and non-economic losses are provided for in Chapter 5 of the MAC Act as follows:
(a) non-economic loss damages - these are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted WPI by
s 131 to persons who have a greater than 10% (WPI) as a result of the injuries sustained in the accident, and
(b) damages for economic losses include damages for past lost earnings and future loss of earning capacity as well as damages for treatment and care expenses. Damages for care expenses are regulated if provided gratuitously[3] otherwise damages are assessed in accordance with general common law principles.
[2] The current maximum as of October 2023 is $620,000.
[3] By s 141B damages may only be recovered if care is provided for at least six hours per week for at least six months and the hourly rate is capped at an amount calculated in accordance with the average weekly earning of workers in NSW.

Treatment

Section 83 of the MAC Act imposes upon insurers a duty to provide treatment, the need for which was caused by the injuries sustained in the accident. The insurer need only pay for treatment that is verified and is reasonable and necessary. The duty under s 83 continues until such time as the claim resolves or is determined.
Treatment is defined in s 42 to include “the provision of attendant care services” and “attendance care services” are defined in s 3 to mean “services that aim to provide assistance to people with every tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.

Dispute resolution

Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:
“(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident.”
Section 61(2) provides that any certificate in a medical assessment matter is “conclusive evidence” of the matters certified in court or assessment proceedings.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessment and the review of medical assessments by this Review Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

MEDICAL ASSESSOR CAMERON – ASSESSMENT AND SUBMISSIONS

Assessment

Medical Assessor Cameron examined the claimant on 29 March 2023 and issued his certificate on 5 April 2023. He was asked to assess:
(a) whether domestic assistance from the date of accident to the date of the medical assessment is causally related to the injuries sustained in the accident, and
(b) whether domestic assistance from the date of the assessment for the claimant’s life expectancy is causally related to the injuries sustained in the accident.
Medical Assessor Cameron takes the following history from the claimant:
(a)    she lives with her husband (who is a general practitioner (GP) and has two adult sons not living at home;
(b)    before the accident she worked in the family business (property management and medical administration) for about 40 hours per week;
(c)    she was in good health before the accident;
(d)    she was a passenger in the motor vehicle and her husband was the driver when they hit the vehicle in front. She said the airbags deployed and that “she lost consciousness for a time”;
(e)    she was taken to St George Hospital and discharged the next day;
(f)    her husband helped her when she got home and she did not return to work. Her husband returned to work after 10 – 14 days;
(g)    the claimant says she has ongoing physical and psychological complaints with her right shoulder in particular causing restriction;
(h)    she is scared of travelling in a car and drives locally only;
(i)    she is tired and has difficulty with sustained activities and is forgetful and has right shoulder pain;
(j)    she takes Paracetamol, Aspirin and Mobic and consults with Dr Girgis at Royale Medical Centre (Royale) at Campbelltown, and
(k)    the claimant was, at the time, 60 years of age, 157cm and 82kg and it is noted she was right handed.
On examination, Medical Assessor Cameron reported:
(a)    neck – inconsistent movement to 70% of normal but symmetrical with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints;
(b)    inconsistent movement in both shoulders with limited movements due to variable pain according to the claimant;
(c)    full range of motion at the upper extremities with no neurological abnormalities;
(d)    mid and lower back - moderate and symmetrical reduced range of motion in all planes of the thoracic spine and lumbar spine with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present, and
(e)    full range of motion of the lower extremities with no neurological abnormalities.
Under a heading “causation and reasons” at [19], Medical Assessor Cameron diagnosed soft tissue injuries mainly to the claimant’s neck and chest wall and that she had persistent symptoms. He was satisfied these injuries were caused by the accident.
Under a heading “treatment and care – reasonable and necessary” at [20], Medical Assessor Cameron said the claimant “would have required assistance with domestic activities for approximately 6 – 12 weeks” after the accident on the basis this is the usual time in which soft tissue injuries would heal. He said ongoing assistance was not indicated in the case of long-term pain because it is “likely to contribute to greater long-term disability related to daily life” and that “it will not assist her longer-term recovery”.
Medical Assessor Cameron concluded at [21], [22] and [23] and then certified that:
(a)    domestic assistance for the care needs arising from the physical injuries from the date of the accident to his medical assessment relates to the injuries caused by the motor accident;
(b)    proposed domestic assistance from the date of his assessment for the remainder of the claimant’s life was related to the injuries caused by the accident;
(c)    0 – 40 hours per week of domestic and care needs to the date of the medical assessment “will be determined by the Occupational Therapist appointed by” the Commission, and
(d)    0 – 8 hours per week of domestic assistance from the date of assessment into the future is not reasonable and necessary.
Medical Assessor Cameron’s certifications in respect of any of the medical assessment matters do not mention the 6 – 12 week period mentioned in his reasons at [20].

Claimant’s submissions - Medical Assessor Cameron’s determination

The claimant says at [10] – [12] that the accident was significant, frightening and the airbags were deployed. The police attended the accident, the pre-crash speed was 80 kmph and she was taken to hospital. She has been treated by numerous practitioners and been assessed by numerous medical professionals.
The claimant notes at [13] that the claimant has accepted causation but says at [14] that Medical Assessor Cameron “found” the claimant only required assistance for 6 – 12 weeks after the accident.
The claimant says at [14] – [16] that the Medical Assessor gave limited reasons, made findings inconsistent with the medical evidence and failed to properly consider the medical evidence.
The claimant outlines the evidence, including the insurer’s evidence that supports a need for care and assistance beyond the first 6 – 12 weeks after the accident.

Insurer’s submissions - Medical Assessor Cameron’s determination

The insurer refers at [9] to Medical Assessor Cameron’s commentary at paragraph 20 where he refers to the 6 – 12 weeks and says at [11] that Medical Assessor Davidson was to determine the duration of the past domestic assistance.
The insurer is critical of the claimant’s analysis of the medical evidence and provides additional quotes from Dr Harvey-Sutton’s report to provide context to the quotes used by the claimant.
The insurer says Medical Assessor Cameron did not adopt the report of its expert occupational therapist without question pointing to her findings of care needs for only six weeks after the accident. The insurer also says the Medical Assessor was entitled to form a different opinion to the evidence in any event.

MEDICAL ASSESSOR DAVIDSON – ASSESSMENT AND SUBMISSIONS

Assessment

Medical Assessor Davidson examined the claimant on 12 September 2022 in the claimant’s Minto home and issued her certificate on 20 September 2022.
Medical Assessor Davidson says she was referred the following dispute:
“Whether 0 – 40 hours per week of domestic assistance for the care needs arising from all the physical injuries from the date of accident to date of MAS assessment is reasonable and necessary in relation to the injuries sustained in the accident.”
Medical Assessor Davidson has a consistent history of the accident and the claimant’s treatment. She reports:
(a)    the claimant has had ongoing pain since the accident;
(b)    she was given exercises in physiotherapy but did not do them, that her husband gave her exercises and encouraged her to do them, but she has not done them saying they aggravated her pain;
(c)    she has been provided with a great deal of domestic assistance since the accident some gratuitously from family and other commercially;
(d)    she received four hours of domestic assistance plus 45 minutes of shower and self-care assistance three times a week;
(e)    two months before the examination the claimant was diagnosed with bladder cancer and she has had surgery;
(f)    at the time of her accident, she and her husband lived in a house in Campbelltown with multiple steps but they have moved to a home in Minto which has a level entrance and a bedroom downstairs;
(g)    her youngest son come homes on the weekend to help around the house;
(h)    the claimant “complained of pain in multiple body parts” and “inability to do her own self-care” and she has a “miserable life”;
(i)    the claimant is having medication but not treatment, and
(j)    she has not worked since the accident and can order her shopping from the internet but prefers to ring for it.
Medical Assessor Davidson undertook an examination of the claimant and noted:
(a)    she avoided using her right arm throughout the assessment;
(b)    she demonstrated very little range of movement in both shoulders;
(c)    she sits all day in the lounge and only gets up when necessary;
(d)    she has ceased driving;
(e)    she performs no self-care and is provided with assistance for showing, dressing and hair washing;
(f)    she has done no food preparation and cooking since the accident as it is done by her husband or commercial carers;
(g)    she can take some items out of the dishwasher and could do some light cleaning but does not do it;
(h)    she has not made the bed since the accident, it is done by others, and
(i)    she has done no vacuuming or mopping, laundry, ironing or other domestic duties since the accident and has used commercial or gratuitously provided assistance.
Medical Assessor Davidson said at page 12 of the report that:
“In the first month significant levels of assistance with domestic tasks (but not self-care tasks) is considered reasonable. However, it is clear that after 1 month, it was important that she actively resumed her self-care and started resuming all light domestic tasks and then another month later gradually resuming the heavier components of domestic tasks. She has refused to participate in the upgraded activities and the activities to increase her strength and fitness and hence she has had a gradual decrease in her functional capacity.”
She certified that the following treatment was reasonable and necessary in the circumstances:
(a)    7.5 hours per week of domestic assistance for the care needs arising from all the physical injuries from the date of accident to 20 September 2013;
(b)    4 hours per week of domestic assistance for the care needs arising from all the physical injuries from the 21 September 2013 to 20 October 2013;
(c)    3 hours per week of domestic assistance for the care needs arising from all the physical injuries from 21 October 2013 to 20 November 2013, and
(d)    0 hours per week of domestic assistance for the care needs arising from all the physical injuries from 21 October 2013 to the date of assessment.

Claimant’s submissions - Medical Assessor Davidson’s determination

The claimant says at [2] – [6] that the Medical Assessor should not have limited herself to a consideration of the claimant’s physical injuries and disabilities but her psychological injuries and disabilities as well.
The claimant also says at [7] that Medical Assessor Cameron has no power to restrict Assessor Davidson’s assessment and at [9] that Medical Assessor Cameron has no power to delegate part of his function to Medical Assessor Davidson.
At [12] the claimant submits that the Medical Assessor had been referred a dispute under s 58(1)(a) and therefore had no authority to make any findings in relation to s 58(1)(b).
Medical Assessor Davidson failed to give reasons or expose her path of reasoning for her findings. She was not required to assess the cause of the need for care, as this had been determined by Medical Assessor Cameron.

Insurer’s submissions - Medical Assessor Davidson’s determination

The insurer says at [16] that Medical Assessor Cameron was asked to decide, from the perspective of a medical practitioner whether the need for past and future care was caused by the accident and was reasonable and necessary and he made those “broad determination[s]”. The insurer then says because he did not have the clinical expertise to determine the number of hours of care that matter was referred to Medical Assessor Davidson who does have that expertise.
The insurer says at [18] – [19] this is not an “unlawful delegation of authority” but the correct procedure.
The insurer says at [20] – [25] that Medical Assessor Davidson did consider the claimant’s psychological injuries as she was provided with the medical legal psychiatric reports.
The insurer submits at [26] – [31] that the Medical Assessor provided concise but effective reasons as to her findings.

ISSUES IN DISPUTE

Procedural matters

As the submissions appeared to reveal a number of uncertainties in the material that was before the Panel concerning precisely what has been referred to the Panel, a teleconference was held on 17 April 2023 between the legal representatives of the parties and Member Cassidy.
The stated aim of the teleconference was to attempt to conciliate a resolution of the dispute or at least narrow the focus to enable the real issues in dispute to be determined in accordance with the Commission’s “guiding principle” in s 42 of the Personal Injury Commission Act 2020.
The parties confirmed that as the accident occurred nearly 10 years ago, and the claimant was 61 years of age and that it would be preferrable for her claim to be heard and determined sooner rather than later, particularly in the light of her diagnosis with bladder cancer. The parties however stated there was little prospect of the claim being settled while there was the outstanding dispute about the degree of the claimant’s WPI and her entitlement to non-economic loss.
After discussions it was agreed by the parties that the Panel would be assessing de novo:
(a)    the physical injuries sustained by the claimant in the accident;
(b)    the amount of care that is reasonable and necessary regardless of whether it was provided gratuitously or commercially, and
(c)    whether the past and future care related to those physical injuries (and not for example the claimant’s cancer).
Member Cassidy confirmed with the parties that the Panel was not considering the claimant’s psychiatric or psychological injuries and any care and assistance the claimant requires as a result of her psychiatric or psychological injuries was a matter for a Medical Assessor with appropriate expertise in assessing those types of injuries.
The Panel scheduled a medical examination with Medical Assessor Gibson on 19 May 2023. Mrs Ahmed failed to attend. The medical examination and Panel teleconference were rescheduled to 28 July and 1 August 2023 respectively.
On 4 July 2023 the Panel was advised that the claimant was having surgery on 29 July 2023 and could not attend the medical examination with Medical Assessor Gibson. On

17 July 2023, directions were issued to the parties setting a new timetable and a medical examination with Medical Assessor Gibson was arranged for 29 September 2023 and a teleconference for the Panel on 3 November 2023.
At the teleconference on 3 November 2023 consideration was given to whether a home visit was necessary to finalise the assessment of the claimant’s care needs. The Panel determined that as there were reports from occupational therapists on file which included photographs and a description of the claimant’s Campbelltown and Minto homes, there was no need for any members of the Panel to conduct a home visit. The Panel was of the view there was sufficient material before the Panel for the Panel to finalise the assessment.

REVIEW OF THE EVIDENCE

General

There is no medico-legal evidence since 2020 (from the claimant) or 2021 (from the insurer).
Some updated medical records have been provided from one of the GP practices the claimant attends at the request of the Panel.
The insurer’s bundle of evidence (document AD3) comprises 349 pages and the claimant’s bundle (document AD2), 129 pages. A supplementary bundle was lodged by the claimant (AD4) with 108 pages and the insurer (AD5) with 9 pages.

Claim form and claim documents

The claim form completed by the claimant and dated 23 March 2014[5] lists at question 25 the following injuries:
(a)    neck pain;
(b)    chest pain;
(c)    shoulder pain, and
(d)    lower back pain.
[5] Page 23 of AD3.
She says at question 26:
“I’m having continuous pain in the neck, shoulder, lower back and chest. It affects my daily activities. I can’t do my job. I can’t cook, maintain the home, can’t clean the home, do shower, mopping, can’t drive; also caused depression, anxiety PTSD and panic disorder.”
Mrs Ahmed says in the form she was taken to St George Hospital, admitted and discharged the next day. She says she has been treated by Dr Khan (GP), Dr Manohar (specialist),

Ms Jessica (physiotherapist) and Ms Cinat (psychologist).
On 24 March 2014, Dr Khan of the Royale in Campbelltown completed the medical certificate in support of the claim[6] noting neck, shoulder and thoracic back pain with ongoing anxiety. He had requested an MRI of the neck and thoracic spine and notes painful neck movements and limited shoulder movements. Dr Khan noted he had been the claimant’s treating doctor since December 2011 and that the claimant had no previous similar conditions.
[6] Page 39 of the insurer’s bundle.

Treating medical records and reports

The records of Royale start in December 2011 with two entries that refers to previous tests, medical conditions and operations. No details of any previous practice are given.
On 21 March 2013 the claimant attended upon Dr Khan complaining of ongoing tiredness, fatigue and interrupted sleep and that she had been using Ativan and Endep prescribed “by another GP”. No details of this other GP have been provided.
On 27 March 2013 the claimant attended on Dr Khan again with complaints of tiredness, stress, low and anxious mood and trouble sleeping. He has a “history of depression” and scripts for Zoloft and Endep in the past. Again no details of the past GP are provided.

Mrs Ahmed reported having not much family support.
On 2 April 2013, the claimant complained again of ongoing tiredness, body aches and pains and low mood. She had been using Stilnox. There is no record of a script from this practice and no pharmaceutical benefit scheme (PBS) records to suggest who had prescribed it and was “keen to start antidepressants”. Avanza was prescribed. Medical Assessor Gibson notes that Ativan is medication used to treat anxiety and difficulty sleeping, Endep is an anti-depressant and Stilnox is a medication used to induce sleep in patients with insomnia.
A discharge summary from St George Hospital[7] notes the speed of the accident (70 – 80 kmph) and that the claimant self-extricated and did not lose consciousness. She complained of “generalised pain, particularly around her neck and upper chest … She also complained of generalised non-specific thoracic spine tenderness.”
[7] Page 120 insurer’s bundle.
Also recorded is:
“A Philadelphia collar was applied. This was removed once the formal report returned and on tertiary examination nil further injuries identified. Mid thoracic midline pain, no neurology, however on further questioning pain was there prior.”
The list of the claimant’s medications provided by the claimant to the hospital contains only those medications relating to diabetes, high blood pressure and high cholesterol. There is no mention of Ativan, Endep or Stilnox. There is also no treating GP identified by the hospital.
On 23 August 2013 the claimant attended Royale for the first time following the accident complaining to Dr Khan of ongoing neck, upper back, shoulder and chest wall pain with limited shoulder movements due to pain. The claimant attended Dr Khan again on

9 September for multiple soft tissue injuries and post-traumatic stress disorder symptoms. She was counselled and referred to a psychologist and advised to continue physiotherapy. A further consultation resulted in a referral to Dr Manohar with it noted that the claimant was “unable to do any domestic duties”. The claimant was referred to Dr Manohar, pain physician. After a further consultation on 15 October 2013, a referral to Dr Dave, orthopaedic surgeon was given. On 18 November 2013 it was reported that the claimant was not progressing as she was unable to drive and could not get to physiotherapy.
On 24 March 2014 there is a record of similar complaints and on 16 June 2014 Mrs Ahmed was reporting ongoing neck and upper back pain (slowly improving) with continued anxiety but during this time the claimant was attending for other conditions including poorly controlled blood pressure and blood sugar levels.
On 21 August 2014 the claimant said she “was a lot better now, still having back discomfort, anxiety has improved, has started driving” and she was going overseas. She was however reported as being non complaint with her appointments. On 14 November 2014 the claimant attended again complaining of tiredness, lack of motivation and stress (not accident related) and it was said her back pain had improved but she still felt discomfort in the lower thoracic area.
On 5 and 28 January 2015 the claimant attended with neck, lower back and shoulder pain. On 31 March 2015 there were similar complaints as well as other matters (sleep apnoea, iron deficiency and urinary problems).
The next accident-related complaint occurred on 6 May 2016 when the claimant complained of pain in the left calf and neck. On 9 May 2016 after a normal doppler scan she complained of pain in her joints and mainly the small joints of the hand, wrists, ankles and knees. After further complaints (and what appears to be further travel overseas) the claimant attended on 12 July 2016 complaining of ongoing body aches and pains. There is a reference to a 2015 bone scan showing sacroiliac joint dysfunction, trochanteric bursitis, arthritis of knees and ankles and the claimant was referred to Dr White, rheumatologist. Bilateral shoulder X-rays and ultrasound were requested.
On 7 October 2016 the claimant attended upon Dr Khan feeling tired. She had seen the rheumatologist and “chiropractor treatment is helping with aches and pains”.
On 30 January 2017 the claimant attended for rectal bleeding and pain in her right wrist on movement. There are other attendances for general medical conditions and then on

19 May 2017 the claimant attended in the context of a report and request for documents, complaining of a stiff back and that she was still in pain.
The claimant saw a psychologist at the practice in June and July 2017 with respect to family issues and chronic pain.
In July 2017 the claimant was complaining of constant right shoulder and left sided pain. She was referred to Dr Viswanathan, Dr Singh, Ms Hood, Ms Song and Dr Payne.
There were several attendances in 2018 with little in the notes but referrals for a CT scan of the brain (2 May 2018) and physiotherapy (3 July 2018).
On 14 May 2019, the claimant attended on Dr Girgis complaining of right shoulder and low back pain and a referral to Andrea Hood were written and medications were prescribed. On 19 September 2019 the claimant complained of impaired memory. On 6 February and

19 March 2020 the claimant attended for ongoing neck, back and shoulder pains since her car accident.
At the request of the Panel additional documents from Royale were provided. These reveal:
(a)    in April, May and August 2021 there are attendances for diabetes advice (poor control), abdominal issues and COVID-19 vaccinations;
(b)    in September, October and December 2021 and January 2022 the claimant attended for diabetes check-ups (with advice about diet and exercise) and COVID-19 vaccination, and
(c)    an attendance on 16 July 2022 for a flu vaccine and then a significant break before she attended on 18 May 2023 for depression “major” and newly diagnosed bladder cancer (there is no other mention in these records of bladder issues and cancer).
The Panel notes there is no reference to the accident or any accident-related injuries, symptoms and conditions in any of these recent consultations.
The Panel notes the MRI of the claimant’s brain was done at the request of Dr Khaledur Rahman of Hilltop and Campbelltown Medical and Central Centre. There are no notes from this doctor or this practice.
Also provided in the updated documents are hospital admission documents (Chris O’Brien Life House) for admissions on:
(a)    23 September 2022 for a cystoscopy and transurethral resection of bladder tumour (TURBT);
(b)    15 February 2023 (although signed by the claimant and dated 16 January 2023) an associated biopsy is dated 15 February 2023) for cystoscopy and biopsy with chemotherapy into the bladder, and
(c)    16 March 2023 for radical [cystectomy] with a 9 – 10 day stay.

Physiotherapy

Ms Jessica Calderara of Macarthur Physiotherapy has written a number of letters to the claimant’s GP as follows:
(a)    the first is dated 3 September 2013[8] which refers to “constant severe head, neck, thoracic, chest wall and lumbar spine pain”. The claimant said she had been taken by ambulance and was obtaining only minimal relief from Panadol during the day and Celebrex at night;
(b)    on 13 September 2013[9] Ms Calderara refers to severe neck, shoulder, lower back, thoracic and chest pain which was said to have occurred at 100 kmph. The claimant complained of palpitations, crushing chest pain, memory loss and anxiety;
(c)    the letter of 24 January 2014[10] reports that the claimant’s neck, shoulder and back pain was severe, and she was having difficulty with her activities of daily living. The claimant was unable to tolerate bed-based exercise and was complaining of constant pain radiating into her upper and lower limbs;
(d)    on 11 April 2014 Ms Calderara reports[11] that the claimant had returned from a holiday with unchanged symptoms. The claimant was advised to undertake a trial of hydrotherapy to encourage movement, and
(e)    a further report dated 1 September 2014[12] noted the claimant’s failure to attend regularly and that as she developed flu-like symptoms she could not attend hydrotherapy. Mrs Ahmed’s symptoms had persisted and were unchanged. “She complains of ongoing bilateral neck and shoulder pain, central low back pain and now right knee pain”. The paraesthesia in the hands was said to have resolved. The claimant could only sit for 10 minutes and walk for 10 – 15 minutes.
[8] Page 157 of the insurer’s bundle.
[9] Page 156 of the insurer’s bundle.
[10] Page 131 and 154 of the insurer’s bundle.
[11] Page 130 and 153 of the insurer’s bundle.
[12] Page 128 and 150 of the insurer’s bundle.
Ms Sarten, exercise physiologist wrote to Dr Khan on 7 May 2014[13] suggesting that cervical and lumbar spine were the issue. There is no mention of thoracic spine or either shoulder. The claimant was said to be able to sit for 30 minutes and walk for 20 minutes.
[13] Page 129 of the insurer’s bundle.
In a second report dated 31 July 2014,[14] Ms Sarten confirmed there had been six sessions but that Mrs Ahmed had made “minimal progress” and that she had attended six hydrotherapy sessions before cancelling all others saying they made her sick and caused pain. She says that “Mrs Ahmed has a poor understanding of pain and function, as she frequently reports high pain levels at rest and makes no effort.” The claimant had complained of knee, hip, lumbar and neck pain when getting in and out of the pool however by the sixth session had improved her range of motion in the hips and knees.
[14] Page 189 of the insurer’s bundle.
Mrs Ahmed was discharged from the treatment due to her minimal progress and poor attendance.

Specialists

Dr Manohar pain physician saw the claimant on referral from Dr Khan. His first report dated 24 October 2013[15] noted “neck pain extending to both shoulders. She has low back pain and chest pain.” She said her neck pain extends “down the whole spine to the back”. He requested an MRI and was to review the claimant again.
[15] Page 187 of the insurer’s bundle.
On 4 December 2014, Dr Manohar saw the claimant again and he reported to Dr Khan[16] that the claimant had pain in the middle of her spine and in the lumbar region. He requested a bone scan.
[16] Page 188 of the insurer’s bundle.
Dr Dave, orthopaedic surgeon saw the claimant on 24 July 2017[17] and took a history of the accident and the claimant being initially treated for neck and back problems before having investigations done more recently for her shoulders due to increasing pain, difficulty lifting her arms and completing her usual activities. He noted she had been seeing Dr Manohar. He noted “generalised diffuse pain starting from the neck all the way to her wrist” and that injections of local anaesthetic had no effect. He recorded no neurological deficits in the upper limb. While he was aware of the ultrasound findings, he thought it would be unlikely rotator cuff surgery would be undertaken.
[17] Page 282 of the insurer’s bundle.
Dr Dave saw the claimant again on 4 April 2018 and wrote to Dr Umer[18] following the claimant’s shoulder MRI. While the claimant’s pain had not changed, Dr Dave noted the claimant’s range of motion had improved. He considered her pain was secondary to the accident and did not require surgery. He advised physiotherapy and pain management.
[18] Page 281 of the insurer’s bundle.
Dr Singh has provided a report dated 18 August 2017[19] to the claimant’s GP. He notes her right shoulder is worse than her left and that she had an injection which benefitted the left but not the right. The claimant said she had physiotherapy but continues with pain and has pain in the calves but no bladder or bowel issues. After what appears to be a thorough review and examination, Dr Singh was of the view the claimant’s lower back was more painful and required investigation in the form of an MRI scan and X-rays of the spine and pelvis. He said he would review her after this and noted Dr Dave was looking after her shoulder complaints.
[19] Page 234 of the insurer’s bundle.
On 20 September 2017 he had the MRI and referred to a bone scan taken five years ago (that would be 2012) which apparently diagnosed “arthrosis at multiple areas”. He was going to organise a further MRI scan and intended to review the claimant further.
The claimant was referred by her GP Dr Girgis to Associated Professor Ireland who first saw the claimant in February 2019.[20] He was given a history of right shoulder pain after a car accident in 2013 which had got worse and gradually progressed to her neck and down to her hand associated with paraesthesia which was waking her at night. Mrs Ahmed reports symptoms have now begun in the left shoulder. She was taking Panadol, Codeine and Mobic and had six steroid injections which have given her a couple of months relief at a time. He noted generalised reduction of cervical movements and a marked reduction of right and left shoulder movements.
[20] His reports commence at page 259 of the insurer’s bundle.

On 25 March 2019 he reviewed the claimant with her MRI scans showing subacromial bursitis, tendinosis and a partial tear in the right shoulder with some adhesive capsulitis. He recommended platelet rich plasma injections (PRP) and surgery.
On 5 April 2019, Dr Ireland reported on the arthroscopy and acromioplasty of the right shoulder noting extensive bursitis, abrasion of the supraspinatus and acromio-clavicular joint arthritis. On 12 April 2019 she was doing well, and he encouraged her to mobilise the shoulder and commence physiotherapy.

Medico-legal reports

Allied Health practitioners

Ms Calderara, physiotherapist has provided a report to the claimant’s solicitor dated

27 May 2014.[21] At that time the claimant had attended for 24 consultations. When first seen (3 September 2013), the claimant was said to have complained of severe neck, shoulder, arm and lower back pain with headaches. Neck, shoulder and lumbar movements were restricted, and the claimant was demonstrating “pain-avoidant behaviours and movement quality was rigid”. Ms Calderara says the claimant had reported some improvement, but her pain remained high and she was not compliant with her home program due to pain and she was unable to progress the claimant’s treatment.
[21] Page 151 of the insurer’s bundle.
Ms Calderara supported an unfitness for all duties from the date of the injury however as at May 2014 the claimant said she could sit for 60 minutes and had travelled to and from Bangladesh and she supported a graded return to work. She expressed the view:
“Based on my assessment and experience, I think it will be unlikely that Mrs Ahmed will make a complete recovery. This will primarily be because of non-physical factors which are impacting Mrs Ahmed's symptoms. High levels of pain reporting and fear-avoidance behaviours have been consistent since the injury.”
NRMA retained Momentum Rehab to provide occupational therapy services to the claimant. Ms McCauley reported to NRMA on 26 November 2013.[22] Mrs Ahmed denied any previous injury and said she was diabetic managed only by diet. Mrs Ahmed said she had increased her weight since the accident.
[22] Page 46 of the claimant’s bundle.
The claimant said her memory and concentration had been affected by the accident and her husband answered most of the questions from Ms McCauley. Ms McCauley noted pain behaviours “such as grimacing, wincing, laboured breathing and groaning when walking up and down the stairs and around the house”.
Dr Ahmed says he has had to time off work to take his wife to appointments and perform household chores and Mrs Ahmed reported her son took six months off university to help with household tasks and her home business. Dr Ahmed said he had been mowing the lawn since the accident, doing the gardening and the other domestic tasks.
Mrs Ahmed told Ms McCauley the accident happened at 100 kmph and that within 20 – 25 minutes she started experiencing whole body pain. She complained of neck pain, right sided chest pain, bilateral shoulder pain, lower back pian and pins and needles in both hands. She is reported to have said she did not lose consciousness.
Dr Khan was contacted, and he advised the claimant was, in the past, unable to tolerate strong pain killing medication and was taking Aspro Clear and Celebrex. The claimant said she was having weekly physiotherapy and could not tolerate more because of pain.

Ms Calderara was contacted who said the claimant was attending less than weekly, could not tolerate touch and was displaying “extreme pain behaviours”.
Ms McCauley has a report from the claimant that she was anxious and stressed and blamed her husband for the accident and that she can only sleep for 10 – 15 minutes at a time.
Ms McCauley administered a test however the claimant was too fatigued and Dr Ahmed completed it for her. The result of the test was a “high perceived level of disability in relation to her ability to manage everyday activities”.
Ms McCauley supported three hours of commercial assistance per week for four weeks paid for by the insurer. She noted the claimant refused a shower chair because she said she could stand in the shower without difficulty. She also notes the claimant was receiving (from her husband and son) 12 – 20 hours of assistance.
A second report dated 9 January 2014 from Momentum Rehab was completed by

Ms McCauley. Little progress was reported due to extremely high levels of pain, fatigue and anxiety.
All communication about rehabilitation were being conducted with Dr Ahmed. He had not progressed the MRI scan requested by Dr Manohar. The claimant had reported new pain in her lower legs. She reported worse pain in her left shoulder.
Dr Ahmed was continuing to provide assistance with self-care, showering and dressing and he complained he was very tired. They were planning a one month holiday in Bangladesh with family where they would be able to pay for staff. The claimant was able to transfer out of bed and was waking only a few times during the night.
The claimant was able at this review to pour herself a glass of water and make herself a tiny snack but friends undertook the meal preparation.
Dr Ahmed said he was unhappy with the standard of cleaning provided by the insurer and wanted a better cleaner as he was tired of working and performing domestic duties. He advised Ms McCauley he had employed a student to work from 8.00am to 5.00pm once a week to clean and garden and that this was not sufficient to keep the house and garden to the same state as it was before the accident.
Ms Van der Noord of Momentum Rehab provided a further report to the insurer on

21 November 2014.[23] The claimant complained of pain in the whole spine, lower back and both shoulders with the left said to be worse than the right with reduced shoulder movements which fluctuated.
[23] Page 166 of the insurer’s bundle.
The claimant was said to have travelled to Bangladesh and Saudi Arabia.
The claimant said she was unable to prepare meals, undertake domestic tasks, required assistance from her husband and son with personal care including showering and dressing, she could not work and had difficulty sleeping.
There had been minimal changes since the first assessment dated November 2013 with the claimant unable to negotiate stairs independently, she could only sit for 15 – 20 minutes and walk for 15- 20 minutes with supervision at all times. She required someone to drive her to appointments because she said she could not get out of the car without assistance or walk on uneven ground.
The claimant told Ms Van Noord she received four hours of cleaning service per week (at $30 per hour) and that this person mowed the lawn and maintained the gardens every three weeks at a cost of $100. Ms McCauley was also advised that the family pays people from the Bangladeshi community to prepare meals.
No recommendations were made as Ms Van Noord required further medical and treatment information.
An activities of daily living report was completed by Ms Hughan, occupational therapist dated 13 July 2016[24] following a three-and-a-half-hour consultation. Mrs Ahmed’s “recall and description of symptoms was vague and she localised her pain poorly”.
[24] Page 191 of the insurer’s bundle.
She has a history of the claimant being unable to self-extricate and an ambulance was called and she was taken to hospital. She said she was prescribed Endone and Mobic at the hospital which upset her stomach. Ms Hughan reports that the claimant’s son had a semester (six months) off university because of his own injuries sustained in the accident.
The claimant’s husband said they had been unable to attend medical appointments due to problems finding parking.
The claimant reported deteriorating and spreading symptoms. The claimant reported pain in her hips and knees. Ms Hughan noted the claimant had poor understanding of pain management and discussed her symptoms in a dramatic fashion and displayed exaggerated pain behaviours.
Ms Hughan reports inconsistent and unreliable range of movement. She notes discrepancy between formal examination and informal observation.
Ms Hughan supported care and assistance for six weeks after the accident totalling 6.25 hours a week for the first three weeks and 5.25 hours per week in the second three weeks.

Medical practitioners

Dr Harvey-Sutton, occupational physician provided a report to NRMA dated 4 August 2017.[25] Dr Harvey-Sutton takes an extensive history of the claimant’s treatment and documents her current symptoms (pain in the neck and across the shoulders, pain in the back and knees). The claimant reported doing no domestic activities and requiring help to dress. On examination there were no signs of radicular symptoms or signs of radiculopathy. The upper limbs showed no wasting, normal power and reflexes but a loss of sensation not attributable to a specific nerve root. Shoulder movements were significantly restricted on the right and mildly restricted on the left. Dr Harvey Sutton diagnosed soft tissue injuries but that her presentation and self-reported disabilities were not a result of the accident. She thought the claimant did not have a need for domestic assistance.
[25] Page 239 of the insurer’s bundle.
Dr George, psychiatrist diagnosed in August 2017[26] a chronic post-traumatic stress disorder and assessed WPI at 5%. In March 2021 when he saw her again, he noted she had residual symptoms only.
[26] Page 250 of the insurer’s bundle.
Dr Peter Giblin provided a report to the claimant’s lawyers on 14 August 2019.[27] He has a consistent history of the accident and the claimant is reported to have been taken to St George Hospital with a neck brace on. She reports consistent neck, back and pain in both shoulders since the accident. Dr Giblin has a history of physiotherapy, pain management referral, six injections into the right shoulder and four into the left and the right shoulder arthroscopic rotator cuff repair in February 2019. The claimant complained of increasing pain, stiffness and loss of function in the right shoulder. Mrs Ahmed also reported neck pain, left shoulder pain and lower back pain.
[27] Page 73 of the claimant’s bundle.
Dr Giblin has a report of gratuitous domestic assistance and a cleaner attending 16 hours per week and greatly reduced level of activity.
On examination the claimant had a nearly full range of motion in the left shoulder but restricted range of motion in the right and a 9% impairment. In a separate report he assessed the claimant’s total WPI at 16%.
He diagnosed soft tissue injuries caused by the accident. He supported ongoing physical support for daily household responsibilities “as her injuries deteriorate and her physical stamina declines”.
Dr Conrad provided a report to the claimant’s solicitor dated 4 December 2019.[28] He has a consistent history of the accident and the claimant’s treatment and says Mrs Ahmed was referred to Dr Singh a neurosurgeon who did not recommend spinal surgery.
[28] Page 81 of the claimant’s bundle.
Dr Conrad notes the claimant lived with her husband and two adult children. While the family have helped her, “she had the benefit of paid help 20 hours a week including housekeeping and gardening which is ongoing”.
Dr Conrad has a history of ongoing neck pain, ongoing right shoulder pain not alleviated by the surgery and is in fact worse than the left shoulder pain. The claimant also complained of lower back pain radiating to both her legs. She was taking medication and having ongoing physiotherapy.
On examination there was moderate restriction of movement and significantly reduced range of motion in both the right and to a lesser extent the left shoulder. Lumbar spine examination was normal. Although he reviewed the MRI of the cervical and thoracic spine revealing only a C6/7 disc bulge he expressed the opinion the MRI evidences disc damage to both the neck and the thoracolumbar spine.
Dr Conrad expressed the view Mrs Ahmed required ongoing physiotherapy a structured rehabilitation program and six hours of home care assistance per week.
In a separate report, Dr Conrad assessed WPI at 19%.
Dr Klug provided a report to the claimant’s solicitor on 22 September 2020[29] in respect of the claimant’s psychological or psychiatric injuries diagnosis a chronic post-traumatic stress disorder and chronic adjustment disorder with depressed mood and recurrent panic attacks.
[29] Page 87 of the claimant’s bundle.
Dr Klug says he has assessed WPI in a separate report, but that report has not been provided to the Panel.
Dr Bentivoglio provided a report to the insurer dated 10 March 2021.[30] He noted the claimant was “a poor historian. It took me more than one and a half hours to obtain the history from her and she appeared to be quite defensive in the answers to my questions.”
[30] Page 295 of the insurer’s bundle.
The claimant reported injuries to both shoulders, both knees, left ankle, back and neck. She denied any problems with those areas before the accident.
Dr Bentivoglio has a history of the claimant’s treatment and Mrs Ahmed said the shoulder surgery had not helped. The most significant problem was said to be her shoulders (right more than left), neck pain and back pain. The claimant was able to dress and undress (with limitations) and she did not move her right shoulder much yet displayed no muscle wasting. Right shoulder restriction was more significant that the left.
He diagnosed aggravations of pre-existing degenerative changes in the right shoulder and neck, a musculoligamentous strain of the lower back and some left shoulder bursitis with tendon changes.
Dr Bentivoglio assessed WPI at 0% for each of the neck and lower back and 6% for the right shoulder.

Other assessments

The parties have received a certification from Medical Assessor Allan that Mrs Ahmed has a WPI of 22% as a result of her psychiatric injuries.[31] That decision is currently subject to an application for review lodged by the insurer on or about 9 May 2023. The President’s delegate has allowed the Review, but no Panel has been convened as yet.
[31] Medical Assessor Allan examined the claimant on 15 March 2023 and issued his certificate on
Medical Assessor Allan records at [9] that the claimant could not remember the details of the accident. He says she was unsure whether she lost consciousness, could not recall how she got out of the vehicle, could not remember how she got to the hospital and believed she remained at hospital “for days”. She could also not remember the name of the hospital and said that immediately after the accident she was in severe pain over her whole body but specifically her chest, shoulders, neck, back and knees.
The Medical Assessor also records at [14] poor function and that the claimant has had carers assisting her several days per week with bathing and getting dressed and that she does nothing around the home.
At [11] Medical Assessor Allan records ongoing constant complaints of pain in her shoulder (later right shoulder and right arm), neck, back and knees.
He diagnoses at [17] a post-traumatic stress disorder and persistent depressive disorder which at [18] he says was caused by the accident as she has failed to recover from her injuries.
The Panel has been provided with a copy of the certificate from Medical Assessor Ho dated 3 April 2023 following his examination of the claimant on 21 December 2021.[32]
[32] The delay in over a year from the date of examination to the date of the certificate appears due to the Assessor using a template relevant to the assessment of disputes under the Motor Accident Injuries Act 2017.
At [2] he confirmed he was asked to assess the claimant’s neck, right and left shoulder, right and left foot and thoracic spine. The Panel notes he was not asked to assess either knee or the lower back.
Mrs Ahmed complained of a sore and stiff neck, both shoulders were very sore and stiff. She said she could not work as she had too many pain killers and developed an ulcer. She complained of lower back pain with no radiation to the lower limbs. She said that someone has to wash her hair because her shoulders are so stiff. She has been advised to have her left shoulder repaired but has declined as she was not happy with the right shoulder.
There were pain behaviours evident. He says, “When I asked her to move any single joint, even the fingers, she complains of pain everywhere and refused to move.”
On examination:
(a)    in the neck there was symmetrical loss of movement without spasm. There were no neurological abnormalities in the upper limbs but all movements were weak and stiff;
(b)    in the thoracic spine there was no deformity or tenderness and “reasonable movement”;
(c)    in the lumbar spine there was restriction of flexion and all other movements were restricted to less than 50% although she could achieve a 70 degree straight leg raise. There were no neurological deficits;
(d)    the shoulders were grossly and equally impaired, and
(e)    in the lower extremity he could not find any abnormality in the foot and movement was “fine”.
He diagnosed at [23]:
“… some soft tissue injury in the whole body which can be in the cervical spine, lumbar spine as muscular ligamentous strain. There is probably a strain to the rotator cuff and she ended up with surgery on the right side according to her with a poor result. I cannot explain why both shoulders have such a poor function at the moment. I believe ther is a lot of psychological overlay. There is no complaint about the thoracic spine or both feet and I also abelieve the cervical spine has resovled and is a minor injury. I find it difficult to assess the perament impairment of both shoulders. If I use the present significant loss of movement [then] she is goint to have high permanent impairment.”
He found at:
(a)    an injury to both shoulders and the injury to the cervical spine were related to the accident [25];
(b)    any injuries to both of the claimant’s feet were not caused by the accident [26];
(c)    Mrs Ahmed’s thoracic spine injury was caused by the accident, but it has resolved [27] although at [28] he says “I do not believe she had any injury to both feet and thoracic spine”;
(d)    the soft tissue cervical spine injury “has resolved completely, hence, no impairment” [28], and
(e) her right and left shoulder injuries had not reached “maximum medical improvement” and considered them “not suitable for assessment” [28].
The certificate of assessment of permanent impairment declined to make an assessment under s 132(3) of the Act on the basis the right and left shoulder injuries “are not yet permanent”. He then expressed an “interim assessment” was that Mrs Ahmed had a WPI of greater than 10% however he also said:
“I do not think [the] patient is trying her best to demonstrate the function of the shoulders. She has a lot of pain behaviour, very abnormal illness presentations. I believe there is a lot of psychological issues. We need further investigation and management.”
There is therefore no agreement between the parties as to the claimant’s degree of WPI and there is no final determination by the Commission’s Medical Assessors as to the degree of the claimant’s WPI. The absence of agreement or determination of the claimant’s entitlement to damages means that the parties have been unable to resolve the claim or have damages assessed and determined.

Radiology

A CT scan of the brain, chest and cervical spine was performed at St George Hospital on

21 August 2013 and the report included in the discharge summary.[33] The brain scan was normal, in the cervical spine there was no fracture, subluxation or dislocation seen and there were no abnormalities in the chest.
[33] Page 122 of the insurer’s bundle.
On 16 September 2013 the claimant had an X-ray and ultrasound of both shoulders[34] which revealed:
(a) small bony spur on the right side in the acromion and joint spaces were maintained on both sides, and
(b) features of mild bilateral subacromial bursitis, tendinosis on both sides and small intrasubstance tears at the insertion of the supraspinatus on each side. “No full thickness tear is seen.”
[34] The report is at page 98 of the insurer’s bundle.

An MRI was undertaken of the claimant’s cervical and thoracic spine on 21 January 2014.[35] While there were degenerative changes found at C6/7 there were no other findings to indicate any ongoing problems. In particular, there were no compromised foramina or any canal stenosis and no evidence of nerve root impingement. In the thoracic spine there were no disc bulges and degenerative changes only with no impingement of nerve roots or spinal cord canal reported.
[35] The report is at page 99 of the insurer’s bundle.
On 17 August 2016 the claimant had an X-ray of both feet (spurring on both sides) and

X-rays of both shoulders[36] which were in keeping with the previous X-rays. Ultrasounds of the shoulders showed bursitis and tendinosis in the right but no tears and in the left tendinosis and bursitis.
[36] The report is at page 231 of the insurer’s bundle.
A further ultrasound of the claimant’s right shoulder was undertaken on 31 May 2017[37] showed a full thickness partial width tear of the subscapularis tendon and a mid-portion full tear of the supraspinatus but intact remaining tendons in the AC joint although the comment is made that the AC joint shows minor degeneration. There was a thickened subacromial bursitis with impingement and abduction limited due to pain.
[37] Page 233 of the insurer’s bundle.
The claimant had MRIs of her right and left shoulder performed on 2 March 2019 at the request of Dr Ireland.[38] In the left shoulder there was low grade supraspinatus and infraspinatus tendinosis without a tear and mild subacromial bursitis. In the right there was acromioclavicular osteoarthritis and subacromial bursitis with supraspinatus tendinosis and a small surface partial thickness tear.
[38] The report is at page 269 of the insurer’s bundle.

RE-EXAMINATION FINDINGS

Mrs Ahmed arrived at the examination on 29 September 2023. She was accompanied by her husband who left to park their car. She brought no imaging studies to the assessment for Medical Assessor Gibson to review.
An interpreter was present by phone for the duration of the assessment. Mrs Ahmed utilised the interpreter intermittently throughout the assessment as she had a good command of English and was able to understand and respond most of the time.
Her husband, Dr Ahmed did not participate in the assessment.
The claimant was a difficult historian and taking a proper history from her was hampered by her memory and the 10 years that has elapsed since the accident. Attempts to clarify dates and events were made but she was confused and could not recall details.

Past medical history

Mrs Ahmed said she had a cholecystectomy, which is (removal of the gall bladder) over 20 years ago while living overseas. She had a hysterectomy in 2011.
She has longstanding diabetes mellitus and has been using insulin twice daily for a long time. She takes thyroxine for thyroid disease. She also takes Candesartan, Zanidip and Metoprolol for hypertension. She takes Endep and Effexor for depression.
Mrs Ahmed did not disclose when questioned any previous injury, accident or condition similar or relevant to those she has reported since the accident. She did not recall any pre-accident medication.

Subsequent medical history

Mrs Ahmed says she has been diagnosed with sleep apnoea and uses a continuous positive airway pressure (CPAP) machine. She could not say when she was diagnosed or who made the diagnosis. She is often tired which she says is due to poor sleep.
The claimant was diagnosed with bladder cancer about two years ago. She was treated with chemotherapy for 11 months which she said has impacted her memory and made her very fatigued. Unfortunately, the treatment failed to eradicate the cancer, and six to eight weeks ago, she had a cystectomy (removal of the bladder) and now has a urostomy bag. She said she needs to empty the bag approximately every half hour. She said her two sons help her with this, and her home helper is also learning to assist with the process. She says she is unable to do it herself. Mrs Ahmed says she has been offered no prognosis as to her future or how the cancer is likely to progress.

History of the subject accident

Mrs Ahmed initially said that she had limited recollection of the accident as her "memory is lost" since the accident. However, she did recall that the accident had occurred at approximately 6pm in the evening. She was a front seat passenger with her seat belt fastened and the car had air bags, which deployed on impact. She said she was unconscious for a time after the accident.
She said she could not remember anything until she awoke in the hospital. She recalled being in a lot of pain involving her chest, both her shoulders, her neck, lower back and right knee. She thought she was in hospital for a while. On specific questioning she recalled there were no obvious marks or contusions to her right knee, but she was sure she injured her right knee in the accident.
The medical records reveal Mrs Ahmed was taken by ambulance to St George Hospital where she remained overnight. When this history was put to the claimant, she said the hospital allowed her to go home, as her husband is a GP.
She said that once she got home, she "couldn't do much at all” and had to sit on the couch with the support of some pillows. She said her husband organised home help almost immediately after the subject accident. When asked the name of the services that were used, she could not recall, but added that her husband may well know. She said she was having assistance with feeding, bathing and caring for her hair by these carers every day since she got home.
Mrs Ahmed says she still has home help and said the level of this home-based assistance has been consistent since 2013. She said her husband is paying for this assistance. She said one of the workers comes in at 9am and stays until 5 or 6pm every day. This worker helps her with breakfast, helps her have a bath, gets her dressed and does her hair. This person also does all the domestic chores for the household and provides some massage treatment. A second helper comes in from 3.30pm to 6.30 or 7pm every day to help prepare snacks for Mrs Ahmed and wash the dishes.
When asked, Mrs Ahmed conceded that before the subject accident the family used to have a gardener and that she did not do the gardening. She also conceded the family had cleaners at times before the accident which she qualified by saying only when she was particularly busy at work. She said she usually worked 40 hours a week. She could not recall how often the cleaners came or how much they had been paying for those services, but she said her husband would know.
Mrs Ahmed has been under the care of various GPs since the accident. Before their move from Campbelltown, she was visiting Dr Magdy Girgis or Dr Khan at Royale in Campbelltown. She said she had not seen Dr Girgis or Dr Khan for some time as they now live in Minto. She has been seeing Dr Rahman for the last 18 months at a practice in Minto. She could not recall seeing doctors at any other practice before Royale.
Mrs Ahmed maintained she had been taking some strong analgesics because of her accident-related injuries and they affected her stomach in that they produce a lot of gas. She could not remember the name of those medications. More recently, she has been using paracetamol and meloxicam (Mobic) but could not recall the dosage.

Current complaints

Mrs Ahmed reported intermittent left-sided chest pain from the seat belt, which is still present, but much less severe over time.
She says she has fairly constant pain across the back of her neck extending to both trapezius regions but not into either of her arms or down to her hands and fingers.
She complains of pain across her lower back which sometimes extends into both thighs, but no further than her knees. She said that if she stands up for long periods the back pain increases and she has to rest.
She complains of pain over the front of both shoulders, which is more severe on the left side.
She said she has been affected psychologically since the accident and has become quite depressed and is fearful of riding in a car.
Mrs Ahmed says she lives with her husband in a double-storey house in Minto. She said they had moved from Campbelltown in order to get a bigger house, after her son’s marriage. Her two sons aged 34 and 28 years, and her eldest son’s wife now live with them. Her husband and older son are GPs, and the other son is a lawyer. She said before the subject accident she used to do administrative work from home for her husband's medical business and their property interests for 40 hours a week.
Mrs Ahmed said her bedroom is upstairs. She said the helpers or a family member support her to walk down the stairs in the morning and up the stairs in the evening. She said she remains downstairs for most of the day.
Medical Assessor Gibson notes that this is not the same history as reported to Medical Assessor Cameron, whom she told that her son’s don’t live at home. It’s also different to what she told Medical Assessor Davidson, that they moved to a single-story house in Minto which has a level entrance and her bedroom downstairs. Attempts to clarify this history with the claimant failed.
When asked, she said that she had her husband had travelled overseas to Bangladesh on several occasions after the accident. She would not be more specific. She thinks the last visit was late in 2019, before the COVID-19 epidemic. She said one of the reasons she travels over there is that there is lots of assistance available and she can rest.

Physical examination

Mrs Ahmed was right-handed. She had a slow but otherwise normal gait without walking aids. She could squat to three-quarters normal range but complained of low back pain. She sat comfortably throughout the assessment. She wore a headscarf and traditional clothing. Her headscarf was adjusted to examine her neck. She did not remove her dress as that was closely fitted, but she did take off her over-jacket by herself and was able to put it back on afterwards. Medical Assessor Gibson noted she demonstrated greater range of motion when doing that than during the formal examination.
Mrs Ahmed then said she could not remove her shoes because of poor shoulder motion. Medical Assessor Gibson noted they had Velcro straps. Medical Assessor Gibson helped her, and she was able to step out of the shoe unaided standing first on one leg and then the other leg without overbalancing.
On examination of her neck, there was tenderness in the midline particularly over the lower cervical segments with tenderness extending into the trapezius muscles bilaterally. Neck movement was:
(a)    flexion and extension to three-quarters normal;
(b)    lateral flexion normal on both sides, and
(c)    rotation to half normal to the right and normal range to the left.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. Her upper arms measured 31cm on both sides. Her right forearm measured 27cm and her left 26cm.
There was no guarding or muscle spasm. There was normal power, sensation and reflexes.
There was normal range of movements at her elbows, wrists and hands.
Shoulders movements were:
(a)    Flexion                   left 90 and right 90 (normal is 180)
(b)    Extension               left 90 and right 90 (normal)
(c)    Abduction               left 90 and right 90 (normal is 180)
(d)    Adduction               left 90 and right 90 (normal)
(e)    Internal rotation      left 90 and right 90 (normal)
(f)    External rotation     left 90 and right 90 (normal)
When moving her arms, the claimant complained of anterior (front) shoulder and trapezial pain.
Medical Assessor Gibson was of the view that best effort was not being provided with flexion and abduction of the shoulders for the following two main reasons. Firstly, while

Mrs Ahmed gave a history of requiring care and assistance since the date of the accident and said that she has not been able to perform any of her domestic duties, Medical Assessor Gibson saw no evidence of muscle wasting in her neck, shoulder or arms to indicate that was the case. Secondly, the observed informal range of motion was greater than the range of motion demonstrated in the examination.
When those inconsistencies were put to her, Mrs Ahmed said that her pain is variable, being a combination of pain referred from the neck and also separate anterior shoulder pains. Medical Assessor Gibson asked the claimant how she felt she had sustained the injuries to both her shoulders, the claimant said it was likely due to the air bags.
On examination of Mrs Ahmed’s back, there was no tenderness over the thoracic spine. There was mild tenderness over her lower lumbar spine. Flexion and extension were to half normal, lateral flexion was to normal range, and rotation to normal range. There was no asymmetry, muscle spasm or guarding.
On examination of her lower limbs, circumferential measurements were symmetrical, 46cm for the thighs and 37cm for calf.
There was tenderness over the anterior aspect of her right knee. Knee movements were 120 degrees of flexion and 0 degrees of extension (normal) bilaterally. There was no crepitus or instability elicited.

CONSIDERATION OF THE ISSUES

What were the injuries sustained in the accident?

The Panel notes that the claimant’s injuries dealt with by Medical Assessors have varied over time. For example, Medical Assessor Ho, in December 2021, was asked to assess neck, thoracic spine, left and right shoulder and left and right feet and the claimant complained of lower back pain. The claimant did not complain of foot pain to Medical Assessor Gibson.
Medical Assessor Allan in March 2023 had a record of chest, right shoulder, right arm, neck, back and knee complaints.
Medical Assessor Cameron, later in March 2023, had a record of chest, right shoulder, neck, mid and lower back complaints. The claimant did not appear to complain of knee pain.
Mrs Ahmed reported to Medical Assessor Gibson in September 2023 immediate complaints of chest, both shoulder, neck, lower back and right knee complaints and that those pains have continued unremitting and in some cases worsening.
Mrs Ahmed conceded at the re-examination with Medical Assessor Gibson that her memory is poor. The Panel notes it is now more than 10 years since the accident and it is not expected that the claimant would be able to remember accurately all the details of the events of the accident or since the accident.
The Panel will consider the injuries alleged by Mrs Ahmed to Medical Assessor Gibson and look to the contemporaneous records rather than relying solely on the histories given by the claimant.

Neck

The claimant complained of pain in her neck at the St George Hospital, albeit generalised non-specific pain. The claim form completed within seven months refers to neck pain as does the medical certificate from Dr Khan. The Panel relies on these contemporaneous records and is satisfied the claimant injured her neck in the accident.
There is no radiology to suggest any fracture or dislocation and while there are degenerative changes in the spine, including at C6/7, the Medical Assessors note these are caused by age and activity and not trauma. The Panel is of the opinion that in particular there is no foraminal or canal stenosis and no sign of nerve root compromise or impingement reported to account for the claimant’s past complaints of radiating pain.
The Medical Assessors on the Panel are of the view the claimant’s neck injury was a soft tissue injury on a background of degenerative changes in the cervical spine.

Back (lower and thoracic)

The hospital records of 21 August 2013 refer to generalised and non-specific thoracic pain. There is no mention of lower back pain.
The claim form completed seven months later, on 23 March 2014 mentions lower back pain but not thoracic pain. Dr Khan in his medical certificate certified as injuries thoracic back pain but not lower back pain. The Royale records mention upper back pain and not lower back pain on 23 August 2013.
Physiotherapy reports from Ms Calderara refers to lower back pain in September 2013 and Dr Manohar has a history of lower back pain in October 2013 and December 2014. Lower back pain appears as a specific mention in the GP notes of January 2015 but then not until May 2019. In the interim, the claimant had seen Dr Singh in September 2017 complaining of lower back pain. Thoracic back pain is rarely mentioned.
The Panel notes that an MRI was done in January 2014 of the claimant neck and thoracic spine but not her lumbar spine. There does not appear to be any radiology at all before the Panel in respect of Mrs Ahmed’s lower back.
The Panel is satisfied on the basis of the hospital notes that the claimant did injure her thoracic spine in the car accident. On the basis of the other contemporaneous notes, the Panel is also satisfied the claimant injured her lower back in the accident.
The Medical Assessors on the Panel are of the view that the nature of the back injuries sustained were soft tissue injuries.
The Panel notes complaints of “new” lower limb pain in the Momentum Rehab January 2014 report, a report of calf pain in May 2016 (Royale notes) and Dr Singh has a report of pain in Mrs Ahmed’s calves in August 2017. Dr Conrad in December 2019 has a history of pain radiating from the lower back to both legs. In the absence of investigations, the Medical Assessors do not accept these various complaints as establishing a more significant injury to the lower back and their time frame does not support them as being accident related.

Chest

The hospital notes refer to upper chest pain. The claim form mentions chest pain. The GP records from two days after the accident record chest pain, although no chest injury is mentioned in the medical certificate. The physiotherapist’s reports of 3 and
13 September 2013 refer to chest pain and Dr Manohar records chest pain on
24 October 2013.
The Panel cannot find in the records any complaints of chest pain in the treating records thereafter. The claimant complained to Medical Assessor Gibson of continued chest pain.
The Panel is satisfied based on the contemporaneous records that the claimant did sustain a chest injury in the accident. The Medical Assessors are of the view that in the absence of any abnormality in the radiology or continuing complaints recorded in the GP records, that the claimant’s chest injury is a soft tissue one and that it has recovered.

Shoulders

The St George Hospital records do not include any specific complaint in either shoulder. The 23 August 2013 Royale entry refers to shoulder pain and limited shoulder movements. The claimant’s claim form lists shoulder pain. It is not clear whether there were complaints in one or both shoulders. Dr Khan wrote in the medical certificate that the claimant had neck pain with limited shoulder movements. Dr Manohar in October 2013 refers to neck pain extending to both shoulders. Dr Harvey-Sutton documented a history of neck pain across the shoulders.
In November 2014, Ms Van der Noord had a history of Mrs Ahmed’s left shoulder being worse than the right. The records from Dr Dave suggest that in July 2017 the claimant had a recent increase in shoulder pain. Dr Singh in August 2017 saw the claimant and reported the right shoulder was worse than the left and Associate Professor Ireland in February 2019 has a history of right shoulder pain since the accident which has got worse and progressed to her arm. Dr Conrad and Dr Bentivoglio have histories of right shoulder pain worse than the left. The Medical Assessors note that imaging studies from 2017 suggest the development of degenerative changes in the shoulders not seen in the radiology closer to the date of the accident.
The claimant says she sustained a specific or frank injury to both her shoulders in the accident and says these injuries were caused by the airbags.
The Panel notes the claimant was a passenger in her husband’s motor vehicle. Her left shoulder was restrained by a seat belt but not her right. The Medical Assessors are of the view that the airbags could have caused a chest injury but not direct injuries to both of the claimant’s shoulders. The mechanism of accident suggests the claimant could have injured her left shoulder due to the placement of the seatbelt.

The Medical Assessors accept that the claimant had symptoms in her shoulders after the accident. It is the clinical judgment of the Assessors that these symptoms, including pain and limited movement, are related to the claimant’s whiplash soft tissue injury to her neck.
It is the clinical judgment of the Medical Assessors that the claimant did not sustain a frank or direct injury to her left or right shoulder in the accident. If she had, the Panel would have expected there to be a record of specific pain in the actual shoulders at the time of the accident or shortly thereafter. The claimant’s early generalised complaints are consistent with referred pain and limitation of movement from the claimant’s neck injury.

Knees

The claimant reported to Medical Assessor Gibson that she had right knee pain immediately after the accident. She conceded that there were no obvious marks or contusions to her right knee. There is no complaint of knee pain in the hospital notes, and it is not mentioned in the claim form, Dr Khan’s medical certificate or the 23 August 2013 Royale note. The physiotherapist’s report of 1 September 2014 appears to be the first medical record of right knee pain and the note suggests it is of recent origin.
Dr Harvey Sutton and Dr Bentivoglio have a history of pain in her knees, Dr Giblin and
Dr Conrad do not. Medical Assessor Ho was asked to assess foot injuries not knee injuries.
The Panel does not accept that the claimant injured either knee in the accident based on the contemporaneous notes and the unexplained gap of more than a year before there is a medical report of knee pain. The Panel would expect there to be a report in the claim form if there was any injury. No radiology has been put before the Panel which supports the finding that there has been injury to either knee. If there was an injury to the knees, the Panel would expect there to be investigations including imaging studies.
In any event the Panel notes that on examination by Medical Assessor Gibson, the range of motion in Mrs Ahmed’s knees was normal suggesting there are few ongoing issues in the right knee affecting the claimant’s ability to function.

Summary of injuries

The Panel is satisfied that the claimant sustained an injury to her neck, thoracic and lower back in the accident. The Panel accepts the neck injury produced symptoms in the shoulders. The Panel does not accept any frank or direct injury to the shoulders or any frank or direct injury to the claimant’s lower limbs including her right knee. The Panel does not accept there was any referred pain from the lower or thoracic back injury into the legs caused by the accident.
The Panel notes that a number of examiners and treatment providers have reported pain behaviours and inconsistency including occupational therapist Ms McCauley on
26 November 2013, physiotherapist Ms Calderara on 27 May 2014, exercise physiologist
Ms Sarten on 31 July 2014 and occupational therapist Ms Hughan on 13 July 2016. Medical Assessors Ho, Cameron and Davidson also reported pain behaviours and inconsistency.
It is the clinical judgment of the Medical Assessors that, based on the re-examination findings, considering the nature of the injuries, the notes and the radiology, the claimant sustained soft tissue injuries on a background of degenerative changes.
The Medical Assessors are of the view that it is medically implausible for the accident-related soft tissue injuries to be still causing the significant levels of pain and disability reported by the claimant to Medical Assessor Gibson. The Medical Assessors also note that the claimant’s current complaints are out of proportion to the soft tissue injuries she sustained and the lack of pathology in the radiology.
The Panel notes there are suggestions in the records from 2016 that the claimant was investigated by a bone scan and diagnosed by a rheumatologist (possibly Dr White) with arthrosis at multiple levels including in the small joints of her hand, wrists, ankles and knees. There are no records from this rheumatologist before the Panel or the bone scan. The Medical Assessors suggest this widespread arthritic condition is the cause of the claimant’s generalised “whole of body” complaints of pain. Arthrosis is a degenerative condition and is not traumatic.

What are the claimant’s post-accident needs for care and assistance?

The Medical Assessors are of the view that the soft tissue injuries sustained by the claimant in the 21 August 2013 accident created a need for some assistance in the acute post-injury phase. The Medical Assessors do not consider the claimant required nursing or personal care assistance during this period.
The Panel notes the claimant reported (see paragraphs 74 and 75) one year after the accident that her condition was improving, she was a lot better now and she travelled overseas.
The Panel notes the claimant’s symptoms expanded later that year with complaints of “new” leg pain and the ongoing other conditions including poorly controlled blood pressure and diabetes, arthrosis and sleep apnoea. The Panel notes the reports of new shoulder pain and apparent deterioration of shoulder functioning in 2017 and finally the claimant’s development of bladder cancer and the treatment for that including 11 months of chemotherapy. It is the clinical judgment of the Medical Assessors that all those unrelated conditions would have created a need for care and assistance. For example, her sleep apnoea and resultant fatigue and the claimant reported her carers are changing her urostomy bag every 30 minutes.
Having read all the material, it is the clinical judgment of the Medical Members of the Panel that the claimant had a need for care and assistance for the first year after the accident and that care is related to her accident caused physical injuries. Thereafter, the claimant has no need for care and assistance as a result of her physical, accident-related injuries.

What level of care is reasonable and necessary in the circumstances?

The claimant lived in a large two-storey house in Campbelltown at the time of the accident. She now lives in a larger home, as her son and his wife are apparently now living there.
Mrs Ahmed says she had a cleaner before the accident, but she could not recall the details. They also had a gardener before the accident, but again the claimant was not sure of the details. How often these people were at the home, for how long and what they did would have give the Medical Assessors some assistance in understanding the reasonable and necessary level of care required by the claimant.
While the claimant and her family chose to employ people to provide care and assistance before the accident, that is not determinative of the matter before the Panel. The Panel must consider what is the reasonable and necessary care and assistance required as a result of the claimant’s injuries. It is a matter for the person tasked with assessing damages to consider whether care is provided or to be provided on a gratuitous basis or commercially and adjust damages for the likelihood of the pre-accident circumstances continuing.
In Diab v NRMA Ltd[39] 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.
[39] [2014] NSWWCCPD 2 (Diab) at [88].
The Medical Assessors acknowledge that in the first year after the accident, the claimant would have had difficulty undertaking the heavier household cleaning chores including vacuuming, mopping, bed making, heavy shopping and meal preparation. The Medical Assessors note the attempts made by the claimant’s physiotherapist, exercise physiologist and rehabilitation providers to improve the claimant’s functionality and the difficulties in doing so. It is the Panel’s view that it was reasonable and necessary in the circumstances for the claimant to have some care and assistance during that 12 month period.
The reports of how much care and assistance provided to the claimant has varied over time. Ms McCauley has a record in January 2014 that the claimant was receiving 12 – 20 hours of assistance from her son and husband. Dr Ahmed, the claimant’s husband told Ms McCauley that he had employed someone from 8.00am to 5.00pm (nine hours) once per week to clean the house and garden. Dr Conrad has a history in 2019 of 20 hours of paid help per week. Medical Assessor Allan has a history of carers assisting the claimant several days per week. Medical Assessor Davidson has a report of the claimant receiving four hours of domestic assistance plus 45 minutes of personal care, three times a week, a total of about 14 hours per week.
Mrs Ahmed told Medical Assessor Gibson her husband arranged care for her from the time she came home from hospital, the day after the accident. The claimant said she has two carers attending her every day since the day of the accident for 11 to 12.5 hours per day between them which would be 77 hours to 85 hours per week.
It is the clinical judgment of the Medical Assessors that this level of care is not reasonable and not necessary for the soft tissue injuries sustained in the accident. It was not appropriate and was likely to contribute to the claimant’s entrenched sick role and long term disability.
The Panel notes the discharge summary from St George Hospital indicating that Mrs Ahmed was discharged from St George Hospital on 22 August 2013, the day after the accident. By her first documented presentation to Royale on 23 August 2013, she was complaining of ongoing neck, upper back, shoulder and chest wall pain. She attended there again about two weeks later on 9 September for multiple soft tissue injuries and there are records of other attendances before 18 November 2013 when it was said that the claimant was referred to physiotherapy, a pain physician and orthopaedic surgeon. Dr Khan, in the referral to
Dr Manohar, notes the claimant was having difficulties with her domestic duties. That supports the claimant having ongoing physical effects from her soft tissue injuries during that initial three-month period, likely to be more severe during the acute recovery stage.
Therefore, for the first two weeks of her recovery, it is the clinical judgment of the Medical Assessors that the claimant’s reasonable and necessary domestic assistance was:
(a)    meal preparation and cleaning up afterward - 0.5 hours per day or 3.5 hours per week;
(b)    stripping and remaking her bed, laundering heavy items, hanging them and bringing them in - 1.0 hour per week;
(c)    heavy shopping - 1.0 hr per week, and
(d)    vacuuming, mopping, dusting those rooms used by the claimant, wiping over surfaces in the kitchen and cleaning the claimant’s bathroom - 3.0 hours per week.
(e)    Total: 8.5 hours per week.
Over the next 12 weeks, it is the clinical judgment of the Medical Assessors that the claimant’s soft-tissue injuries would have continued to progress toward recovery and she would have been capable of gradually taking on more duties around her home.
Therefore, for the next 12 weeks, until about six months after the accident, the claimant’s reasonable and necessary domestic assistance was:
(a)    help with weekly bulk meal preparation and cleaning up afterwards - 2.0 hours per week;
(b)    stripping and remaking her bed and hanging wet bedding to dry: 0.5 hours per week;
(c)    heavy shopping - 1 hour per fortnight or 0.5 hours per week, and
(d)    vacuuming, mopping, dusting those rooms used by the claimant, wiping over surfaces in the kitchen and cleaning the claimant’s bathroom - 3.0 hours per week.
(e)    Total: 6.0 hours per week.
For the next six months, from 6 to 12 months post-accident - when the claimant attended her GP and was planning to travel overseas, ongoing strengthening exercises and a graded return to resumption of home duties would have led the claimant to the point where her neck and back injuries resulted in a need for domestic assistance for regular household cleaning only.
Therefore, for another six months, until 21 August 2014, the claimant’s reasonable and necessary domestic assistance needs were:
(a) vacuuming, mopping, dusting throughout the home, but only including the claimant’s bedroom regularly, wiping over surfaces in the kitchen and cleaning the main bathroom that was used regularly: 3.0 hours per week.
(b) Total: 3.0 hours per week.
From 21 August 2014, Mrs Ahmed injuries would no longer result in a need for domestic assistance. Therefore, no level of domestic care and assistance is reasonable and necessary in relation to the soft tissue physical injuries she sustained in the accident.
The Panel notes that the claimant said she did not work in the garden before the accident. Therefore, the Panel is of the view that it is not reasonable and necessary in those particular circumstances for her to have any assistance with the gardening at any stage after the accident.
The Panel has not considered the claimant’s alleged psychological injuries and any care and assistance required as a result of those injuries.

CONCLUSION

The Panel finds that:
(a)    care and domestic assistance after the accident is reasonable and necessary in the circumstances of the claimant’s physical injuries;
(b)    care and assistance beyond 21 August 2014 is not reasonable and necessary in the circumstances of the claimant’s physical injuries;
(c)    a reasonable level of necessary care and assistance between the date of the accident and 21 August 2014 is 8.5 hours a week (for the first 12 weeks), 6 hours a week (for the next 12 weeks) and 3 hours a week (for the next six months), and
(d)    the care and assistance allowed is related to the injuries caused by the accident.
While the overall outcome is similar to that of Medical Assessors Cameron and Davidson, the Panel will revoke their certificates in order to answer the statutory questions.

16 March 2023.

[2023] NSWPICMP 586

13 November 2023