Allianz Australia Insurance Limited v Smoothy

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Smoothy [2023] NSWPICMP 378
CLAIMANT:	Cherie Smoothy
INSURER:	Allianz Australia Insurance Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Lauren Alach
MEDICAL ASSESSOR:	Dawn Pienbenga
DATE OF DECISION:	4 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; side on collision on 27 April 2015; issue of extent of domestic assistance from date of accident; Medical Assessor (MA) found motor accident caused need for domestic assistance and remitted matter to an occupational therapist to determine the extent of the need; subsequent MA determined initial need at 3.5 hours per week and ongoing at 2.5 hours per week; claimant re-examined and the extent of the need assessed; finding that need would cease at 75 years of age due to underlying health conditions and otherwise due to the ageing process; ongoing need assessed at 1.25 hours per week; Held – original assessment revoked.
DETERMINATIONS MADE:	Review Panel Assessment of Treatment and Care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel revokes the certificate of Medical Assessor Mangipudi dated 27 September 2022 and issues a new certificate determining that: The following treatment and care: · 27 April 2015 to 26 July 2015 at 2.75 hours per week · 27 July 2015 to 18 July 2023 at 1.25 hours per week · 19 July 2023 to the claimant attaining 75 years of age at 1.25 hours per week IS REASONABLE AND NECESSARY in the circumstances.

REASONS

BACKGROUND

Ms Cherie Smoothy (the claimant) was involved in a motor accident on 27 April 2015. She was driving when the insured vehicle failed to stop at a give way sign impacting into the passenger door.[1]
[1] Claimant’s bundle, p 27.
The insurer is liable to pay Ms Smoothy any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The medical dispute before the Panel is:
-      whether 0-7 hours per week and every hour in between of domestic assistance from the date of the accident to 27 July 2015 for all physical injuries caused by the subject motor vehicle accident is reasonable and necessary in relation to the injury sustained in the subject accident;
-      whether 0-4 hours per week and every hour in between of domestic assistance from 27 July 2015 and continuing to the date of assessment for all physical injuries caused by the subject motor vehicle accident is reasonable and necessary in relation to the injury sustained in the subject accident, and
-      whether 0-4 hours per week and every hour in between of domestic assistance from the date of assessment and continuing for the balance the claimant’s life expectancy being a further 0-52 years the physical injuries is reasonable and necessary in relation to the injury sustained in the subject accident.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[2] Section 60 of the MAC Act.
The medical dispute was originally sent to Medical Assessor Home who provided a certificate dated 8 July 2019.[3]
[3] Insurer’s bundle, p 76.
Medical Assessor Home determined that that there had been recovery of right shoulder elevation and that the claimant had sustained soft tissue injuries to the cervical spine, lumbar spine and left knee. The Medical Assessor opined that it was reasonable to accept that the injuries caused a requirement for assistance with heavier domestic chores. He referred the question of “reasonable and necessary treatment in relation to the requirements on domestics assistance to an occupational therapist for further assessment”.[4]
[4] Insurer’s bundle, p 89.
Neither party sought a review of that certificate which determined the issue of causation under s 58(1)(b) of the MAC Act. Accordingly, the issue for the Panel is limited to s 58(1)(a) of the MAC Act, that is “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances”.

The Medical Assessment

In accordance with the orders of Medical Assessor Home, the remaining part of the medical dispute was sent to Medical Assessor Mangipudi who issued a Medical Assessment Certificate dated 27 September 2022 (the Medical Assessment Certificate).[5] The Medical Assessor determined that:
-      3.5 hours per week of domestic assistance from the date of the accident to 26 July 2015 for all physical injuries caused by the subject motor vehicle accident was reasonable and necessary in relation to this injury sustained in the subject accident;
-      2.5 hours per week of domestic assistance from 27 July 2015 to the dated the assessment for all physical injuries caused by the subject motor accident was reasonable and necessary in relation to the injuries sustained in the subject accident, and
-      2.5 hours per week from the date of assessment and continuing for the balance the claimant’s life expectancy being a further 52 years is reasonable and necessary in relation to the injury sustained in the subject accident.
[5] Insurer’s bundle, p 110.

OTHER MEDICAL ASSESSMENTS

Medical Assessor Prior issue a certificate dated 15 July 2019.[6] The Medical Assessor found that the need for domestic assistance at any time did not relate to the psychological injuries caused by the motor accident.
[6] Insurer’s bundle, p 54.
There was no review filed by either party from that certificate.
Medical Assessor Carr issued a certificate dated 7 July 2016.[7] The Medical Assessor found that the claimant suffered chronic musculoligamentous strain of the neck with referred non-verifiable radiculopathy, right shoulder strain, muscular ligamentous strain of the back with non-verifiable radiculopathy and contusion to the left knee. The permanent impairment was assessed at 6%.
[7] Insurer’s bundle, p 10.

THE REVIEW

The application for referral of the medical assessments to a review panel were made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[8]
[8] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[9]
[9] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[10] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[10] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[11]
[11] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[12]
[12] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[13]
[13] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[14]. In Raina v CIC Allianz Insurance Ltd[15] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[14] See s 3B(2) of the CL Act.
[15] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act. The observations are still pertinent to the presently constituted Panel.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundles of documents in accordance with the initial Direction.
Dr Gibson was qualified by the insurer and provided a report dated 27 May 2021.[16] Dr Gibson opined that there were soft tissue injuries to the neck and left knee which were of a minor nature and should have resolved long ago with no resulting disability. The doctor assessed that the claimant required some assistance with the heavier chores for up to two hours a week for the first two to four weeks after the motor accident.
[16] Insurer’s bundle, p 91.
Dr Habib was qualified by the claimant and provided a report dated 19 February 2016.[17] Dr Habib noted that the claimant was independent in her personal care and hygiene and can manage slight household tasks. She noted that her parents were living close by who owned a cleaning company, and her mother frequently assists her with vacuuming, cleaning and washing. The doctor noted that the claimant’s father does outdoor maintenance and lawn mowing.
[17] Claimant’s bundle, p 35.
Dr Habib opined that the claimant required daily help from her mother for at least seven hours a week for the first three months and thereafter at four hours a week which is likely to be ongoing.
Dr Virgona opined that the psychiatric symptoms were not of the type or severity at any point since the accident to lead to any requirement for personal or domestic assistance.[18]
[18] Insurer’s bundle, p 109.
Dr Bashir, general practitioner, provided a report dated 11 April 2019.[19] The doctor noted that the claimant was suffering from chronic pain and depression and would need domestic assistance such as “cleaning house, carpet and lawn mowing”. It was estimated that that help would be required twice a week for three hours a day for the next two years.

Claimant’s submissions undated[20]

[19] Claimant’s bundle, p 16.

[20] Claimant’s bundle, p 13.

The claimant referred to the opinion of Dr Habib who provided an opinion on the need for domestic assistance. The claimant otherwise referred to the opinion of the treating general practitioner, Dr Bashir, who opined that the claimant developed chronic pain and that her condition and not improved.
The claimant submitted that Dr Gibson did not discuss with the claimant issues with respect to performing domestic tasks and the ability to carry those out.

Insurer’s submissions undated[21]

[21] Insurer’s bundle, p 1.

The insurer referred to the prior assessments of permanent impairment provided by Medical Assessor Carr and Medical Assessor Samuels. It otherwise noted that the claimant disclosed in the claim form she suffered a fractured ankle in 2004 which resulted in the occasional limp.
The insurer referred to the opinion of Dr Gibson who opined that any need for domestic assistance would have been confined to the first two to four weeks following the accident.

Insurer’s submissions dated 25 October 2022[22]

[22] Insurer’s bundle, p 4.

These submissions were filed seeking leave to review the Medical Assessment Certificate.
The insurer submitted that the Medical Assessor failed to take any property proper history of the extended domestic chores performed by the claimant prior to and after the motor accident.
The insurer noted that the Medical Assessor found inconsistencies during the interview assessment but failed to raise the observed inconsistencies with the claimant.
The insurer submitted that the medical assessor failed to record the claimant’s functional activity tolerances and does not appear to have conducted any clinical observation of the claimant performing domestic tasks and activities around the home. They submitted that a proper clinical observation of the claimant performing domestic tasks was required.
The insurer further submitted that the Medical Assessor considered a combination of the claimant’s physical and psychological symptoms in reaching the conclusion as to the extent of domestic assistance required. It noted that the Medical Assessor was required to assess domestic assistance because of the physical injuries only.
The insurer submitted that the medical assessor failed to provide adequate reasoning for the findings in circumstances where he considered that he was not able to understand the nature of the claimant’s disability and qualify that need.
The Insurer made further submissions that the requirement for assistance with shopping was not based on physical restrictions but on concern about leaving her daughter alone. They further submitted that it was unclear why the claimant required laundry assistance and whether it was due to accident-related restrictions or the fact that the claimant does not own a washing machine.
The insurer submitted that the need for transportation assistance related to the claimant’s repeated complaints of dizziness. These complaints were not reported when the claimant was examined by Medical Assessor Home.
The Insurer noted that the claimant had a further life expectancy of 49 years and that the Medical Assessor failed to provide any reasons why the claimant’s assistance needs will not change in the long-term.

RE-EXAMINATION

Ms Smoothy was examined by both Medical Assessors on 20 July 2023. The examination report is as follows:
History of symptoms and treatment following the motor accident
Ms Smoothy said that she was the driver of a vehicle involved in an accident on 22 April 2015. The ambulance and police were called but “they didn’t come because there wasn’t a death”. She waited for the tow truck. She and her daughter attended Riverstone Medical Centre where she was told to keep an eye on her symptoms and go to hospital if she got worse.
She said that her pain increased so her mother drove her and her daughter to Hawkesbury Hospital later that night. They were kept for some time under observation but didn’t stay overnight. She Attended Rouse Hill Town Medical & Dental Centre a day or two later. Ms Smoothy said they were treated for whiplash because that is what the hospital diagnosed, and she remained under the care of Dr Bashir.
Although Assessor Anup Mangipudi’s certificate[23] stated that she was referred to physiotherapy in 2015, Ms Smoothy said that her GP suggested physiotherapy but didn’t refer her. By the date of Assessor Carr’s assessment in July 2016, about 15 months after the accident, he said that she had received no physiotherapy. Ms Smoothy said that a friend provided massage for pain management.
She thought that sometime the next year she saw Philip Wood, who she thought was a chiropractor but is a physiotherapist. She wasn’t sure how long for. At some point after that she started attending physiotherapy at Body Focus to help relieve her pain.
Ms Smoothy said that her concern was for her daughter whose psychological health deteriorated. She put her daughter’s health before her own treatment.
[23] Medical Assessment – Occupational therapist for Treatment, Anup Mangipudi dated 27 September 2022.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Smoothy said that she blacked out, fell on a coffee table, and sustained injury to her right ankle in December 2022. She required treatment, including physiotherapy, and wore a moon boot.
A hospital discharge summary from 4 July 2022 documented her suffering a fracture to her 10^th rib. Ms Smoothy said that was also from a fall.
Because of dizziness and multiple falls at home, Ms Smoothy said that she was referred to a neurologist for further opinion and treatment. She said that she is also under the care of a cardiologist. She didn’t provide a detailed explanation for that treatment, but she said she was “diagnosed with leaking valve” in 2021.

Social situation
At the time of the accident Ms Smoothy was living in her current home with her two children who were 10 and 12 years old. The house is owned by her parents. Her children are now 18 and 20. Her niece has also lived with them “on and off” because it is closer to her work.
Her daughter has finished school. She is not working because she has physical and psychological issues. Ms Smoothy’s son is in year 12 at high school.
Employment
Ms Smoothy said that pre-accident she was working as a childcare worker, casually in a preschool. She was also doing some beauty therapy from home.
She said that she had three or four months off work after the accident. She went back to the preschool for a few days, and then would work the odd days when she got called. She continued doing some freelance work as a beautician from home.
About a year after the accident, she got a casual job as a beautician for Crown Plaza, Hawkesbury. Initially she was able to drive to work. She said that she didn’t work for about two years because of falls and deteriorating psychological health. She went back to work at the Crown Plaza in December 2022, working casually now for only a day or two a month doing facials.
Current symptoms
Neck – Ms Smoothy said that she has constant neck pain, and her neck movement is restricted in all directions. This has gotten worse over the last three years since she has been having dizzy spells. She couldn’t point to where her neck pain is because she said that her shoulder restriction makes it impossible for her to reach there.
Right Shoulder – Although Assessor Home assessed Ms Smoothy’s right shoulder condition as having resolved, and Assessor Mangipudi reported some pulling pain on assessment but didn’t document movement restriction, at the examination for review assessment Ms Smoothy reported constant, excruciating pain in her right shoulder. She said that flared up about 3 years ago and she was diagnosed with bursitis. She further said, “there is fluid in there”, “but it is all coming down to my mental state”. She said, “I can’t lift my arm at all”. But that is similar for both shoulders not just the right shoulder hurt in the accident.
Lower back – She reported ongoing pain in her lower back which she said gets worse when she sits too long.
Left Knee – Although Dr Habib said that by October 2016 Ms Smoothy’s left knee pain “had now mostly resolved”, Ms Smoothy said that her knee pain still “comes and goes”. She thought she could stand for about 30 minutes. She can’t squat and said that she has difficulty standing from low chairs but didn’t relate that specifically to left knee pain.
Driving – Ms Smoothy said that she received medical advice that it wasn’t safe for her to drive because of her “blackouts”, so she hasn’t driven for the past 2 ½ years.
Psychological - This review assessment relates to the impact of Ms Smoothy’s physical injuries from the accident on her need for domestic care. Therefore, the assessors didn’t perform a comprehensive assessment of the impact of her psychological symptoms on her daily performance. However, Ms Smoothy said that besides taking non-prescription medication for pain, her only prescribed medications are for mood and migraine management. She said she is under the care of a psychiatrist and psychologist for post-traumatic stress disorder, depression and anxiety. She further said “my physical function has deteriorated. It seems to be related to psychological issues. I believe that I am still getting worse”.

Medication
Ms Smooth said that she is taking 12 Advil anti-inflammatory tablets a day. She’s also taken Voltaren and Nurofen and used heat packs for pain. She said that she sometimes takes 4 Advil tablets just so she can cut up food and always takes them before her work as a beautician. She then manages the physical movements involved in doing facials but the medication “starts to fade off after three hours at work”.
Current and proposed treatment
Ms Smoothy said that she is currently seeing a GP as needed, a cardiologist, neurologist, blood specialist, psychiatrist, and psychologist.
Ms Smoothy said that she plans to start physiotherapy again but doesn’t currently receive physical treatment for her injuries in the accident.

Range of movement and strength
The assessors started a formal assessment of Ms Smoothy’s range of movement and strength. It quickly became clear that her maximal active range of movement was much less than when she was assessed by Assessors Carr, Home and Mangipudi.
That included her right shoulder, which she could only elevate to 20° in flexion and 45° in abduction. She only achieved about 5° of external rotation. That was much less than the 20-30° loss of flexion and abduction range assessed by Assessor Carr, the full right shoulder range assessed by Assessor Home, and only “pulling pain” on movement documented by Assessor Mangipudi.
Ms Smoothy’s demonstrated similar restriction in her left shoulder, which wasn’t injured in the accident. When the assessors brought that to Ms Smoothy’s attention, she said that both of her shoulders are now painful. That body part was not referred as part of our review assessment.
Similarly, when assessing her lumbar movement, Ms Smoothy moved very slowly and shook, complaining of pain in her shoulders and appearing to stop moving before her maximal range. That made a proper assessment of her lumbar range difficult.
Although only her left knee was injured in the accident, when the assessors attempted to assess Ms Smoothy’s knee range from seated she moved her legs very slowly and didn’t move either knee to full flexion or extension range. When standing she could fully extend her knees.
Functional status
Sitting – Ms Smoothy said that she tends to sit on the stool at the kitchen bench. Most of the time she lays down in bed. She moved on and off the stool several times during the assessment.
She stood after sitting on the stool for about 20 minutes, saying that was to manage her lower back pain.
Ms Smoothy sat down on the couch to demonstrate her knee movement, but when asked to show the assessor how she stands without using her arms for support she tried several times but needed help to rise. She didn’t tell the assessors that she couldn’t get up from the couch before she sat down. When the assessors asked her why she couldn’t stand from the couch independently and relied on furniture when getting off the toilet, she said it was because of overall pain and not specific to any injury.
Walking / mobility – She said that she walks around the house. She now never goes to a shopping centre or uses public transport. She doesn’t know how far she can walk currently.
When arriving for the assessment, the assessors heard Ms Smoothy walk quickly to answer the door. She walked at a moderate pace back to the living room with the assessors. Once the assessment started, Ms Smoothy walked slowly and complained of pain affecting her mobility. When that inconsistency was brought to her attention, she said that anxiety about the assessment could be a factor in why she was in a rush to get to the door, and she didn’t want to keep the assessors waiting.
Standing – She thought she could tolerate standing for 30 minutes adding “but I would find that hard”. Ms Smoothy only stood for a couple of minutes at a time during the assessment, opting to move around rather than stand in one place.
Stairs – Ms Smoothy said that she finds stairs difficult. During the assessment, she climbed up and down 5 steps at her front door using the rail for support. She moved slowly and seemed to struggle pushing up through each leg to climb. She appeared to have similar difficulty for both legs, therefore the assessors concluded that her difficulty was not clearly related to the injury to her left knee in the accident.
Squatting – Ms Smoothy said that she couldn’t squat. When the assessors asked her to show how far she can squat to the floor, she started shaking and over balanced even before she started to lower herself.
Other functional movements and tolerances – Ms Smoothy said that she can’t bend forward. She can’t lift and carry, even a 600ml bottle of water. She said, “I would be scared to drop it”. She struggled to take the lid off a 600ml bottle but was eventually able to do it.
Environmental factors
Ms Smoothy still lives in the 3-bedroom, 2-bathroom single level home owned by her parents. She was living before the accident. That was described in Assessor Mangipudi’s report with photos and will not be repeated here. Her ability to climb the 5 steps at the front of the home was documented previously and access to the home for functional tasks is considered below.
Activities of daily living status

ACTIVITY

REPORTED FUNCTIONAL STATUS – PRE-INJURY

REPORTED FUNCTIONAL STATUS – POST-INJURY

Eating/drinking Toileting, Grooming & Showering

Independent.

Ms Smoothy said that she usually takes a lot of pain killers before eating so that she can cut up food. She only eats one meal a day.

She can slowly reach behind her for perineal hygiene and can adjust her clothing after toileting.

She had a toilet surround to help with transfers on and off the toilet but that broke last week. A friend advised her to purchase that. She gets off the toilet herself when alone at home but sometimes asks her son to help her when he is home.

Ms Smoothy said that she can reach her face to put on makeup and can brush her teeth.

She transfers slowly in and out of the shower and sits to wash herself. She lacks motivation to shower every day.

Based on our assessment, Ms Smoothy’s difficulty cutting up food, cleaning herself after toileting and standing from the toilet is related to recent deterioration in her functioning affecting her bilateral arm and leg movement and not to her neck, back or left knee injuries in the accident.

Therefore, the assessors determined that Ms Smoothy wouldn’t have needed help with eating/drinking, toileting, grooming or showering since 27 April 2015 because of her physical injuries in the accident.

Dressing

Independent.

Her clothes are currently kept in her son’s wardrobe, so he gets them out for her. Ms Smoothy didn’t say that that was needed because of her physical injuries.

She sits on the bed to dress her lower body and can put on her socks and shoes.

There is no reference in the evidence of Ms Smoothy needing help with self-care since her accident. When assessed by Assessor Home in July 2019, he documented that she is independent for activities of self-care.

The assessors determined that Ms Smoothy wouldn’t have needed help with dressing since 27 April 2015 because of her physical injuries in the accident.

Cooking/meal preparation

Ms Smoothy said that she was a “great cook” and that she enjoyed cooking. She cooked most days for the household and her parents also came for dinner about four times a week. She made breakfast and school lunches for her children.

After the accident, she said that she wasn’t cooking initially. But when her daughter started to drop weight a few months after, she started working with a dietician and preparing her meals plans. Her son started buying his lunch at school and her daughter didn’t eat much.

Because she wasn’t working during that initial period post-accident and would have been able to take her time preparing simple meals, there is no clear reason why her physical injuries from the accident would have prevented her involvement in meal preparation.

She said that she was able to manage food preparation until about 4 months ago. Ms Smoothy said that she hasn’t cooked since. The reasons for that weren’t clear. Her mother either prepares meals at their home or brings them food. She sometimes helps to chop up ingredients.

Based on Ms Smoothy’s presentation during the assessment, and her description of chronic pain and headaches, bilateral arm and leg restrictions and significant recent deterioration, her physical injuries from the accident are not a significant factor in her no longer preparing regular meals.

Based on the above, the assessors determined that Ms Smoothy wouldn’t have needed help with meal preparation and cooking because of her physical injuries in the accident, from 27 April 2015 to date and continuing.

Washing up

She did all the washing up. They didn’t have a dishwasher until after the accident.

Ms Smoothy said that after the accident she never returned to washing up. However, when assessed by Assessor Carr in July 2016 she told him that her cervical headache is aggravated by washing dishes. That indicates that she was washing dishes by then.

She said that she now doesn’t have the arm strength to even open the dishwasher. She refused to attempt that during the assessment in case it aggravated her pain.

Based on the assessment results and review of the evidence, now that Ms Smoothy’s accident-related right shoulder restrictions have resolved she should be able to wash up after meal preparation and eating.

Based on the above, the assessors determined that Ms Smoothy wouldn’t have needed help with washing up because of her physical injuries in the accident, from 27 April 2015 to date and continuing.

Shopping

She went grocery shopping every second day, mostly to Riverstone Market Town which is a 10-minute walk or a 2-minute drive from her home.

Ms Smoothy said that she stopped going to the local shop alone immediately after the accident. She could drive there but was in pain, so her mother went with her “just in case”. “I would also forget things, so mum was there to remind me”. That indicates that her difficulty with shopping was not related to her physical injuries, even in the period immediately after the accident. However, her soft tissue injuries are likely to have made bulk shopping difficult during the initial recovery period.

She continued to shop online for personal items, her own and her children’s clothing. She has also shopped online for groceries at times.

Currently, she is not driving and therefore not doing any shopping. She related that to her deterioration over the past couple of years. She might occasionally drive there with her mother but doesn’t get out of the car. Her mother does the shopping for her. She said that she feels uncomfortable, worthless and is also concerned about leaving her daughter home on her own.

Based on Ms Smoothy’s report that she stopped driving due to “dizziness” and fear of blacking out, and does not use public transport, her inability to drive to the shopping centre is not related to her injuries in the accident.

Although it was not possible to assess Ms Smoothy’s current injury-related neck, low back and left knee restrictions because of the overlay of non-accident-related factors, Assessor Home considered that her residual soft tissues injuries would only affect her performance of heavy domestic chores. Therefore, Ms Smoothy should be able to spread her shopping over a few trips a week to shop for the household if it were only for her physical injuries from the accident.

The assessors determined that Ms Smoothy would have needed help with fortnightly shopping from 27 April 2015 to 26 July 2015. Assistance beyond that is not considered reasonable and necessary due to the physical injuries Ms Smoothy sustained in the accident.

Laundry

Ms Smoothy said that she did the laundry daily.

She said that she hasn’t returned to doing the laundry since her injury.

Although she didn’t have a washing machine when visited by Assessor Mangipudi, she said that there is now one outside, but she doesn’t use it. Her mother sometimes uses it or alternately will take the laundry home with her. Ms Smoothy said that the pain in her shoulders restricts her and “it hurts to move”. Her son sorts the laundry when it is returned and puts it away.

Based on our assessment, there are factors other than physical injuries from the accident that are affecting Ms Smoothy’s performance of laundry. If only for the soft tissue injuries to her neck, lower back and left knee, she would be able to modify the way she does laundry in order to continue to do it after the accident. Her young adult children would also now be expected to assist since they share the household.

Based on the above, the assessors determined that Ms Smoothy wouldn’t have needed help with laundry because of her physical injuries from the accident, from 27 April 2015 to date and continuing.

Bed-making including changing linen

She said she would change her sheets every three days and change the children’s sheets once a week. She made her bed daily.

Her mother took over changing the bed sheets after the accident and laundering those. Ms Smoothy didn’t recall doing that regularly. That assistance seems reasonable based on the combination of her right shoulder, left knee, neck and lower back pain which would have made it difficult for her to stretch across the bed, lift the mattress to remake beds and reach to hang sheets and doona covers during the initial recovery period.

Her daughter doesn’t get out of bed much. Her mother strips and change her son’s sheets twice a week and her sheets once a week.

Based on Assessor Home’s assessment that Ms Smoothy’s right shoulder injury has resolved, and her children now being of an age where they could strip and remake their beds themselves, she should not need help to make her bed and change her sheets because of residual neck and back pain. She should be able to do that taking her time and using modified methods. Factors other than injury-related physical injuries are now affecting her ability to make her bed.

Therefore, the assessors determined that Ms Smoothy reasonably needed help to strip the bedding and remake her bed, and to hang the sheets on the line, from 27 April 2015 to 26 July 2015. Assistance beyond that is not considered reasonable and necessary because of her physical injuries in the accident.

Light daily cleaning and tidying (wiping down benches, light dusting)

Ms Smoothy said that she would clean throughout her home. She would sweep and vacuum daily, mop every second day, wipe over the toilet and bathroom surfaces daily and perform a deep clean of her bathroom every two weeks. She thought she would spend 2.5 hours every second day and another 3 hours every second week on cleaning.

She hasn’t paid for any help with cleaning since the accident.

After the accident, things were neglected initially. Her mother then started visiting every second day to make the beds and do two hours of cleaning. That included dusting, cleaning the floors and bathrooms. She thought her mother was spending about 8 hours cleaning. There have been periods when she couldn’t come as often due to other commitments.

Ms Smoothy said that she got back to wiping over surfaces and tidying, but never returned to heavier cleaning. Her mother is still mopping, vacuuming and dusting.

During the assessment, Ms Smoothy declined demonstrating how she would attempt domestic tasks such as vacuuming. She said that a backpack vacuum is heavy and difficult to use, and she hasn’t attempted vacuuming. The Assessors didn’t pursue that because it was clear that there were factors other than her injury-related physical injuries that were affecting her ability to clean her home.

However, Assessor Home determined that soft tissue injuries to Ms Smoothy’s neck, lower back and left knee would still cause a need for assistance with heavy domestic chores. She reasonably still needs help to thoroughly clean the bathrooms fortnightly, to move furniture for vacuuming and to vacuum, mop and dust up high, down low and in difficult to reach areas

Therefore, the assessors determined that Ms Smoothy reasonably needed help with regular household cleaning from 27 April 2015 to 26 July 2015 because of her physical injuries in the accident.

As Ms Smoothy’s soft tissue injuries settled, she indicated that she was able to get back to lighter aspects of cleaning. That is in line with the expected recovery process.

Therefore, she reasonably needed help with heavier domestic tasks only from 26 July 2015 to date and continuing because of her physical injuries in the accident.

Weekly cleaning (vacuum/sweep/ mop and cleaning bathroom)

Garbage management

Ms Smoothy would take the rubbish out to the bins and could take the council bins out to the road.

Ms Smoothy’s son or parents now take out the rubbish and put out the bins.

Based on our assessment, Ms Smoothy should be able to take rubbish out to the bins, push the bins to the road and bring them in again if only for her accident-related physical injuries.

The assessors have determined that Ms Smoothy reasonably needed help with household garbage management from 27 April 2015 to date and continuing because of her soft tissue injuries in the accident. Removal of garden rubbish has been accounted for below.

Gardening and lawn mowing

Ms Smoothy’s home has small areas of lawn at the back and front. There are limited established gardens. Ms Smoothy said that she would mow the lawn regularly. She had a lawn mower. In winter the grass doesn’t grow as quickly so she would only mow once a month. She would mow weekly/fortnightly in summer. She also trimmed the hedges at the front of the house when they needed it. Her father did the whipper snipping as she did not have the equipment to do this herself.

Ms Smoothy said that she hasn’t returned to mowing the lawn or gardening since the accident. Her nephew, who lives and works with her parents, comes over to mow the lawns and do the edges. He uses a blower to clean up after. He just whipper snips the lawn at the back and mows the grass at the front.

The assessors couldn’t assess the impact of Ms Smoothy’s accident-related physical impairments on her ability to perform lawn and garden maintenance. That is because of the overlay of non-accident-related factors. However, based on Assessor Home’s finding that she has residual neck and lower back pain affecting her performance of heavy domestic tasks, she could still need help with lawn mowing, edging, trimming hedges and garden rubbish removal every 2-4 weeks because of her physical injuries in the accident.

The assessors note Assessor Mangipudi’s recommendation of 1.0 hour per week assistance for outdoor tasks to include lawn mowing, weeding, pruning and garden rubbish removal. We note however that the first three months post-accident fall in the cooler/winter months and thus consider weekly assistance was too frequent and suggest it was more reasonably needed monthly. Ms Smoothy therefore needed lawn and garden maintenance services on a monthly basis from 27 April 2015 to 26 July 2015 because of her physical injuries in the accident.

Following the initial recovery period, lawn mowing services 19 times per year and hedge trimming 4 times a year remained reasonable and necessary from 26 July 2015 to date and continuing due to Ms Smoothy’s physical injuries in the accident.

Car Cleaning

She said that she would hand wash her car as needed.

After the accident Ms Smoothy said that she fought the insurer to prevent them writing her car off but noted it is unable to be driven. To this day it remains parked outside the house. Ms Smoothy did eventually replace her car but noted that she no longer washed her car. Therefore, she hasn’t had an assessed care need for car washing from the date of the accident.

At the time of our assessment, Ms Smoothy indicated that she was not driving due to dizziness which is not an accident-related injury.

In the future, should Ms Smoothy return to driving, she would have the ability to take her car to a local car wash. Reimbursement for monthly external car washing would be reasonable in that instance because she could find reaching to wash and dry all parts of the car difficult because of her physical injuries in the accident.

Property Maintenance

Ms Smoothy said that she washed the windows as needed. She was also “very hands-on” so could use tools to “fix things” as needed around the house. Her parents owned the house, and her father cleaned the gutters.

The house hasn’t been maintained as well as pre-accident. Spider webs have built up and the windows haven’t been washed for over a year. Ms Smoothy said that she hasn’t been able to manage home maintenance tasks since the accident.

As with gardening, the assessors couldn’t assess the impact of Ms Smoothy’s physical impairments on squat low, climb, lift and carry and use her arms repetitively for home maintenance tasks. Again, that was because of the overlay of non-accident-related factors.

However, based on Assessor Home’s finding that she has residual neck and lower back pain affecting her performance of heavy domestic tasks, she has reasonably needed help with washing windows and minor repairs and maintenance since the accident.

Based on the above, intermittent property maintenance was unlikely to be a priority for Ms Smoothy or her family in the first 12 weeks of her recovery and she didn’t need help during that period. Following that, she reasonably needed help with property maintenance tasks including window cleaning, removal of cobwebs, minor maintenance down low and at heights from 26 July 2015 to the date of our assessment and ongoing. That is related to her physical injuries in the accident.

Medication Management

I wasn’t on any medication before the accident.

She organises and takes her own medication.

Community Access

She drove for work and all daily living activities. She only used public transport for family activities in the city or other locations where parking was expensive.

Ms Smoothy said that she didn’t have a car straight after the accident because she had to negotiate with the insurer so that they didn’t write the car off. She didn’t drive much for 6 months after the accident, but there is no reference in the reports provided of her needing help with transport post-accident.

She stopped driving about 2½ years ago due to factors other than her physical injuries in the accident and said that she hasn’t caught public transport. She has relied on her mother for community access and transport.

The assessor’s saw no evidence in the documents reviewed that Ms Smoothy needed help with community access because of her injuries in the accident. Her need for transport currently is related to other than accident-related physical injuries.

Therefore, the assessors determined that Ms Smoothy hasn’t needed help with transport and community access because of her physical injuries in the accident, from 27 April 2015 to date and ongoing.

ACTIVITY	REPORTED FUNCTIONAL STATUS – PRE-INJURY	REPORTED FUNCTIONAL STATUS – POST-INJURY
Eating/drinking Toileting, Grooming & Showering	Independent.	Ms Smoothy said that she usually takes a lot of pain killers before eating so that she can cut up food. She only eats one meal a day. She can slowly reach behind her for perineal hygiene and can adjust her clothing after toileting. She had a toilet surround to help with transfers on and off the toilet but that broke last week. A friend advised her to purchase that. She gets off the toilet herself when alone at home but sometimes asks her son to help her when he is home. Ms Smoothy said that she can reach her face to put on makeup and can brush her teeth. She transfers slowly in and out of the shower and sits to wash herself. She lacks motivation to shower every day. Based on our assessment, Ms Smoothy’s difficulty cutting up food, cleaning herself after toileting and standing from the toilet is related to recent deterioration in her functioning affecting her bilateral arm and leg movement and not to her neck, back or left knee injuries in the accident. Therefore, the assessors determined that Ms Smoothy wouldn’t have needed help with eating/drinking, toileting, grooming or showering since 27 April 2015 because of her physical injuries in the accident.
Dressing	Independent.	Her clothes are currently kept in her son’s wardrobe, so he gets them out for her. Ms Smoothy didn’t say that that was needed because of her physical injuries. She sits on the bed to dress her lower body and can put on her socks and shoes. There is no reference in the evidence of Ms Smoothy needing help with self-care since her accident. When assessed by Assessor Home in July 2019, he documented that she is independent for activities of self-care. The assessors determined that Ms Smoothy wouldn’t have needed help with dressing since 27 April 2015 because of her physical injuries in the accident.
Cooking/meal preparation	Ms Smoothy said that she was a “great cook” and that she enjoyed cooking. She cooked most days for the household and her parents also came for dinner about four times a week. She made breakfast and school lunches for her children.	After the accident, she said that she wasn’t cooking initially. But when her daughter started to drop weight a few months after, she started working with a dietician and preparing her meals plans. Her son started buying his lunch at school and her daughter didn’t eat much. Because she wasn’t working during that initial period post-accident and would have been able to take her time preparing simple meals, there is no clear reason why her physical injuries from the accident would have prevented her involvement in meal preparation. She said that she was able to manage food preparation until about 4 months ago. Ms Smoothy said that she hasn’t cooked since. The reasons for that weren’t clear. Her mother either prepares meals at their home or brings them food. She sometimes helps to chop up ingredients. Based on Ms Smoothy’s presentation during the assessment, and her description of chronic pain and headaches, bilateral arm and leg restrictions and significant recent deterioration, her physical injuries from the accident are not a significant factor in her no longer preparing regular meals. Based on the above, the assessors determined that Ms Smoothy wouldn’t have needed help with meal preparation and cooking because of her physical injuries in the accident, from 27 April 2015 to date and continuing.
Washing up	She did all the washing up. They didn’t have a dishwasher until after the accident.	Ms Smoothy said that after the accident she never returned to washing up. However, when assessed by Assessor Carr in July 2016 she told him that her cervical headache is aggravated by washing dishes. That indicates that she was washing dishes by then. She said that she now doesn’t have the arm strength to even open the dishwasher. She refused to attempt that during the assessment in case it aggravated her pain. Based on the assessment results and review of the evidence, now that Ms Smoothy’s accident-related right shoulder restrictions have resolved she should be able to wash up after meal preparation and eating. Based on the above, the assessors determined that Ms Smoothy wouldn’t have needed help with washing up because of her physical injuries in the accident, from 27 April 2015 to date and continuing.
Shopping	She went grocery shopping every second day, mostly to Riverstone Market Town which is a 10-minute walk or a 2-minute drive from her home.	Ms Smoothy said that she stopped going to the local shop alone immediately after the accident. She could drive there but was in pain, so her mother went with her “just in case”. “I would also forget things, so mum was there to remind me”. That indicates that her difficulty with shopping was not related to her physical injuries, even in the period immediately after the accident. However, her soft tissue injuries are likely to have made bulk shopping difficult during the initial recovery period. She continued to shop online for personal items, her own and her children’s clothing. She has also shopped online for groceries at times. Currently, she is not driving and therefore not doing any shopping. She related that to her deterioration over the past couple of years. She might occasionally drive there with her mother but doesn’t get out of the car. Her mother does the shopping for her. She said that she feels uncomfortable, worthless and is also concerned about leaving her daughter home on her own. Based on Ms Smoothy’s report that she stopped driving due to “dizziness” and fear of blacking out, and does not use public transport, her inability to drive to the shopping centre is not related to her injuries in the accident. Although it was not possible to assess Ms Smoothy’s current injury-related neck, low back and left knee restrictions because of the overlay of non-accident-related factors, Assessor Home considered that her residual soft tissues injuries would only affect her performance of heavy domestic chores. Therefore, Ms Smoothy should be able to spread her shopping over a few trips a week to shop for the household if it were only for her physical injuries from the accident. The assessors determined that Ms Smoothy would have needed help with fortnightly shopping from 27 April 2015 to 26 July 2015. Assistance beyond that is not considered reasonable and necessary due to the physical injuries Ms Smoothy sustained in the accident.
Laundry	Ms Smoothy said that she did the laundry daily.	She said that she hasn’t returned to doing the laundry since her injury. Although she didn’t have a washing machine when visited by Assessor Mangipudi, she said that there is now one outside, but she doesn’t use it. Her mother sometimes uses it or alternately will take the laundry home with her. Ms Smoothy said that the pain in her shoulders restricts her and “it hurts to move”. Her son sorts the laundry when it is returned and puts it away. Based on our assessment, there are factors other than physical injuries from the accident that are affecting Ms Smoothy’s performance of laundry. If only for the soft tissue injuries to her neck, lower back and left knee, she would be able to modify the way she does laundry in order to continue to do it after the accident. Her young adult children would also now be expected to assist since they share the household. Based on the above, the assessors determined that Ms Smoothy wouldn’t have needed help with laundry because of her physical injuries from the accident, from 27 April 2015 to date and continuing.
Bed-making including changing linen	She said she would change her sheets every three days and change the children’s sheets once a week. She made her bed daily.	Her mother took over changing the bed sheets after the accident and laundering those. Ms Smoothy didn’t recall doing that regularly. That assistance seems reasonable based on the combination of her right shoulder, left knee, neck and lower back pain which would have made it difficult for her to stretch across the bed, lift the mattress to remake beds and reach to hang sheets and doona covers during the initial recovery period. Her daughter doesn’t get out of bed much. Her mother strips and change her son’s sheets twice a week and her sheets once a week. Based on Assessor Home’s assessment that Ms Smoothy’s right shoulder injury has resolved, and her children now being of an age where they could strip and remake their beds themselves, she should not need help to make her bed and change her sheets because of residual neck and back pain. She should be able to do that taking her time and using modified methods. Factors other than injury-related physical injuries are now affecting her ability to make her bed. Therefore, the assessors determined that Ms Smoothy reasonably needed help to strip the bedding and remake her bed, and to hang the sheets on the line, from 27 April 2015 to 26 July 2015. Assistance beyond that is not considered reasonable and necessary because of her physical injuries in the accident.
Light daily cleaning and tidying (wiping down benches, light dusting)	Ms Smoothy said that she would clean throughout her home. She would sweep and vacuum daily, mop every second day, wipe over the toilet and bathroom surfaces daily and perform a deep clean of her bathroom every two weeks. She thought she would spend 2.5 hours every second day and another 3 hours every second week on cleaning.	She hasn’t paid for any help with cleaning since the accident. After the accident, things were neglected initially. Her mother then started visiting every second day to make the beds and do two hours of cleaning. That included dusting, cleaning the floors and bathrooms. She thought her mother was spending about 8 hours cleaning. There have been periods when she couldn’t come as often due to other commitments. Ms Smoothy said that she got back to wiping over surfaces and tidying, but never returned to heavier cleaning. Her mother is still mopping, vacuuming and dusting. During the assessment, Ms Smoothy declined demonstrating how she would attempt domestic tasks such as vacuuming. She said that a backpack vacuum is heavy and difficult to use, and she hasn’t attempted vacuuming. The Assessors didn’t pursue that because it was clear that there were factors other than her injury-related physical injuries that were affecting her ability to clean her home. However, Assessor Home determined that soft tissue injuries to Ms Smoothy’s neck, lower back and left knee would still cause a need for assistance with heavy domestic chores. She reasonably still needs help to thoroughly clean the bathrooms fortnightly, to move furniture for vacuuming and to vacuum, mop and dust up high, down low and in difficult to reach areas Therefore, the assessors determined that Ms Smoothy reasonably needed help with regular household cleaning from 27 April 2015 to 26 July 2015 because of her physical injuries in the accident. As Ms Smoothy’s soft tissue injuries settled, she indicated that she was able to get back to lighter aspects of cleaning. That is in line with the expected recovery process. Therefore, she reasonably needed help with heavier domestic tasks only from 26 July 2015 to date and continuing because of her physical injuries in the accident.
Weekly cleaning (vacuum/sweep/ mop and cleaning bathroom)
Garbage management	Ms Smoothy would take the rubbish out to the bins and could take the council bins out to the road.	Ms Smoothy’s son or parents now take out the rubbish and put out the bins. Based on our assessment, Ms Smoothy should be able to take rubbish out to the bins, push the bins to the road and bring them in again if only for her accident-related physical injuries. The assessors have determined that Ms Smoothy reasonably needed help with household garbage management from 27 April 2015 to date and continuing because of her soft tissue injuries in the accident. Removal of garden rubbish has been accounted for below.
Gardening and lawn mowing	Ms Smoothy’s home has small areas of lawn at the back and front. There are limited established gardens. Ms Smoothy said that she would mow the lawn regularly. She had a lawn mower. In winter the grass doesn’t grow as quickly so she would only mow once a month. She would mow weekly/fortnightly in summer. She also trimmed the hedges at the front of the house when they needed it. Her father did the whipper snipping as she did not have the equipment to do this herself.	Ms Smoothy said that she hasn’t returned to mowing the lawn or gardening since the accident. Her nephew, who lives and works with her parents, comes over to mow the lawns and do the edges. He uses a blower to clean up after. He just whipper snips the lawn at the back and mows the grass at the front. The assessors couldn’t assess the impact of Ms Smoothy’s accident-related physical impairments on her ability to perform lawn and garden maintenance. That is because of the overlay of non-accident-related factors. However, based on Assessor Home’s finding that she has residual neck and lower back pain affecting her performance of heavy domestic tasks, she could still need help with lawn mowing, edging, trimming hedges and garden rubbish removal every 2-4 weeks because of her physical injuries in the accident. The assessors note Assessor Mangipudi’s recommendation of 1.0 hour per week assistance for outdoor tasks to include lawn mowing, weeding, pruning and garden rubbish removal. We note however that the first three months post-accident fall in the cooler/winter months and thus consider weekly assistance was too frequent and suggest it was more reasonably needed monthly. Ms Smoothy therefore needed lawn and garden maintenance services on a monthly basis from 27 April 2015 to 26 July 2015 because of her physical injuries in the accident. Following the initial recovery period, lawn mowing services 19 times per year and hedge trimming 4 times a year remained reasonable and necessary from 26 July 2015 to date and continuing due to Ms Smoothy’s physical injuries in the accident.
Car Cleaning	She said that she would hand wash her car as needed.	After the accident Ms Smoothy said that she fought the insurer to prevent them writing her car off but noted it is unable to be driven. To this day it remains parked outside the house. Ms Smoothy did eventually replace her car but noted that she no longer washed her car. Therefore, she hasn’t had an assessed care need for car washing from the date of the accident. At the time of our assessment, Ms Smoothy indicated that she was not driving due to dizziness which is not an accident-related injury. In the future, should Ms Smoothy return to driving, she would have the ability to take her car to a local car wash. Reimbursement for monthly external car washing would be reasonable in that instance because she could find reaching to wash and dry all parts of the car difficult because of her physical injuries in the accident.
Property Maintenance	Ms Smoothy said that she washed the windows as needed. She was also “very hands-on” so could use tools to “fix things” as needed around the house. Her parents owned the house, and her father cleaned the gutters.	The house hasn’t been maintained as well as pre-accident. Spider webs have built up and the windows haven’t been washed for over a year. Ms Smoothy said that she hasn’t been able to manage home maintenance tasks since the accident. As with gardening, the assessors couldn’t assess the impact of Ms Smoothy’s physical impairments on squat low, climb, lift and carry and use her arms repetitively for home maintenance tasks. Again, that was because of the overlay of non-accident-related factors. However, based on Assessor Home’s finding that she has residual neck and lower back pain affecting her performance of heavy domestic tasks, she has reasonably needed help with washing windows and minor repairs and maintenance since the accident. Based on the above, intermittent property maintenance was unlikely to be a priority for Ms Smoothy or her family in the first 12 weeks of her recovery and she didn’t need help during that period. Following that, she reasonably needed help with property maintenance tasks including window cleaning, removal of cobwebs, minor maintenance down low and at heights from 26 July 2015 to the date of our assessment and ongoing. That is related to her physical injuries in the accident.
Medication Management	I wasn’t on any medication before the accident.	She organises and takes her own medication.
Community Access	She drove for work and all daily living activities. She only used public transport for family activities in the city or other locations where parking was expensive.	Ms Smoothy said that she didn’t have a car straight after the accident because she had to negotiate with the insurer so that they didn’t write the car off. She didn’t drive much for 6 months after the accident, but there is no reference in the reports provided of her needing help with transport post-accident. She stopped driving about 2½ years ago due to factors other than her physical injuries in the accident and said that she hasn’t caught public transport. She has relied on her mother for community access and transport. The assessor’s saw no evidence in the documents reviewed that Ms Smoothy needed help with community access because of her injuries in the accident. Her need for transport currently is related to other than accident-related physical injuries. Therefore, the assessors determined that Ms Smoothy hasn’t needed help with transport and community access because of her physical injuries in the accident, from 27 April 2015 to date and ongoing.

Comment on consistency
There were some inconsistencies with Ms Smoothy’s presentation, during the assessment and when compared with the examinations documented by Assessor’s Carr, Home and Mangipudi. Those inconsistencies have been documented in sections 50, 53 and 54 and were brought to Ms Smoothy’s attention during the assessment. Her responses were also documented and considered when preparing the reasons below. That includes an obvious deterioration in Ms Smoothy’s overall presentation, which she reported and the assessor’s determined is related to factors other than her physical injuries in the accident.
Findings from the examination
Ms Smoothy’s presentation on the day of our examination was very different to how she presented to all previous assessors. Based on information documented above, including her reporting and our examination, there are factors other than her physical injuries in the accident which are affecting her currently. Therefore, this assessment of her past and current need for domestic assistance cannot be informed by her current presentation and Ms Smoothy’s reporting of the assistance that she is now receiving.
Documents indicate that she has consistently reported right shoulder, left knee, cervical and lumbar spine since the accident. Assessor Home determined that she suffered soft tissue injuries to her right shoulder neck, back and left knee. Assessor Carr determined that her left knee had “settled completely” by the date of his assessment in 2016, and Assessor Home determined that her right shoulder symptoms had also resolved. Assessor Home determined that her residual cervical spine, lumbar spine and left knee symptoms give rise to a need for domestic assistance from the date of his assessment. His finding has not been disputed so will inform our assessment below.
Based on the above diagnoses and determinations, Ms Smoothy reasonably needed more domestic assistance for about 12 weeks to allow for recovery of her soft tissue injuries [24]^,[25]&[26]. After that, her acute injuries should have settled and had less effect on her daily performance. Because Assessor Home assessed her as having some ongoing symptoms about 8 years later, and there is no evidence that her accident-related condition deteriorated in the intervening years, she would have reached about her current level of recovery about 12 weeks after her accident. Therefore, her need for help with heavy domestic tasks has been stable since that time.
[24]    “For soft tissue injuries, resumption of normal activity is advised. Encouraging resumption of normal activities and movement of the neck is more effective compared to rest. Activation is an intervention in which the practitioner deliberately and conscientiously encourages the patient to resume normal activities of daily living” (Evidence-based management of acute musculoskeletal pain a guide for clinicians). Australian Acute Musculoskeletal Pain Guidelines. Brisbane: Australian Academic Press Pty. Ltd. 2004, Australian Government: National Health and Medical Research Council).
[25]    “Chronic pain guidelines espouse focusing on maintaining participation in functional activities despite the pain because inactivity or avoidance of movement leads to increased symptoms of depression, muscle atrophy, disability and increased pain” ( “Psychosocial Interventions for Chronic Pain: A Snapshot Review” by the Australian Centre for Posttraumatic Mental Health for the Institute for Safety, Compensation, and Recovery Research. Dr D Mitchell and AP M O’Donnell. 6 July 2011).
[26]    “Goals should include increasing function and decreasing reliance on medical providers” (
Ms Smoothy needed the following domestic assistance for the first 12 weeks after her injury, from 12 weeks post-accident to the date of our assessment and ongoing. Assessor Mangipudi chose the date 26 July to end the initial recovery period. Although 12 weeks post-accident is 20 July 2015, ending that period on 26 July is considered reasonable.
27 April 2015 (date of accident) to 26 July 2015 (3 months post-accident)
2.75 hour per week for:
·Bulk shopping: 1 hour per fortnight or 0.5 hours per week.
·Stripping bed and laundering sheets: 0.5 hours per week.
·Cleaning throughout the home: 3 hours per fortnight (1.5 hours per week).
·Lawn and garden maintenance and collecting green waste in bin (winter months): 1.0 hr/month or 0.25 hours per week.
Although Ms Smoothy wouldn’t have been up to performing home maintenance tasks those are unlikely to have been a priority during that initial period post-accident.
27 July 2015 to 18 July 2023 (date of review assessment)
1.25 hours per week for:
·Thorough cleaning of bathroom, behind furniture, at heights and down low and in difficult to reach places: 1.0 hr/fortnight or 0.5 hrs per week.
·Lawn and garden maintenance, collecting green waste in bin: 19 lawn maintenance services per year based on fortnightly services for the 6 warmer months and monthly for the 6 colder months. 4 x hedge trimming services per year. All estimated at about 1 hour per service for a total of 23 hours per year. That’s an average of t 0.5 hrs/wk.
·Annual window washing and repairs and maintenance at heights and down low. 6 hours per year for window washing and 0.5 hours per month for other maintenance. That’s a total of 12 hours per year or 0.25 hours per week.
19 July 2023 and continuing for the balance the claimant’s life expectancy
1.25 hours per week for:
·Thorough cleaning of bathroom, behind furniture, at heights and down low and in difficult to reach places: 1.0 hr/fortnight or 0.5 hrs per week.
·Lawn and garden maintenance, collecting green waste in bin: 19 lawn maintenance services per year based on fortnightly services for the 6 warmer months and monthly for the 6 colder months. 4 x hedge trimming services per year. All estimated at about 1 hour per service for a total of 23 hours per year. That’s an average of t 0.5 hrs/wk.
·Annual window washing and repairs and maintenance at heights and down low. 6 hours per year for window washing and 0.5 hours per month for other maintenance. That’s a total of 12 hours per year or 0.25 hours per week.

REASONS

The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two specialist occupational therapists, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[27] and Insurance Australia Ltd v Marsh.[28]
[27] [2021] NSWCA 287 at [40], [41] and [45].
[28] [2022] NSWCA 31 at [11], [21], [64].

The Panel adopts the Medical Assessors’ extensive examination report subject to the reasons below and adds the following further reasons.

Treatment disputes

The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.

(a) reasonable and necessary, and
(b) in relation to the injury.

The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[29] The MAC Act otherwise characterises the medical disputes as separate issues.
[29] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].

Reasonable and necessary

Ms Smoothy is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.

When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[30] Grove J stated:[31]

“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”

[30] [2003] NSWCA 52 (Clampett).

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

Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[32]
[32] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].

Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[33] They include:
[33] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].

(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.

67.Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.

The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant.

The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of the issue of whether treatment “relates to the injury caused by the accident”.

The Panel has previously noted the issue of causation for the need for domestic assistance has been determined by Medical Assessor Home. Neither party appealed that decision. The balance of the medical dispute, the extent of the need, was referred to an occupational therapist. It is that decision which is the subject of review. Accordingly, the Panel’s reasons have examined the extent of the need in the context of the acceptance that there is a causal relationship between certain injuries and the need for domestic assistance.

We have otherwise applied the above legal principles in assessing the extent of the claimant’s need.

The insurer submitted that the Medical Assessor failed to consider the issue of the cessation of the need for domestic assistance. No submission was made as to how the Panel should limit or otherwise restrict the need.

We accept that the need would be limited and probably non-existent at some future point. The claimant has other health conditions set out in the examination report of the Medical Assessors. It is likely that due to these health conditions and otherwise due to the ageing process, at some point the claimant’s need for domestic assistance would no longer be caused by the physical injuries.

Whilst it is difficult to precisely identify the age when this will occur, relying on both the expertise and experience of the Medical Assessors and considering the claimant’s health and otherwise using common knowledge based on human experience, we find that any need will cease at 75 years of age.

CONCLUSION

For these reasons the Medical Assessment Certificate dated 27 September 2022 is revoked. A replacement certificate is issued at the commencement of these Reasons.

[2023] NSWPICMP 378

4 August 2023