Dahal v Allianz Australia Insurance Limited
[2024] NSWPICMP 814
•2 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dahal v Allianz Australia Insurance Limited [2024] NSWPICMP 814 |
| CLAIMANT: | Bhuban Dahal |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Maloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 2 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Claimant suffered injury in a motor vehicle accident on 17 October 2020; Medical Assessor (MA) Cameron determined the Claimant’s disputed treatment was related to the injuries caused by the accident but was not reasonable or necessary in the circumstances; dispute about treatment; Bell v Allianz Insurance Australia Limited, AAI Limited t/as AAMI v Phillips, Warner v Insurance Australia Ltd t/as NRMA Insurance (No. 1), and Rahman v Insurance Australia Ltd t/as NRMA Insurance referred to; the Review Panel conducted its own examination and confirmed that the repair cost of a fallen retaining wall, monthly cleaning costs, and further lawnmowing assistance are reasonable and necessary in the circumstances; Held – the Certificate of MA Cameron was revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron, dated 24 February 2024, and substitutes the determination to certify that the following treatment and care relate to the injury caused by the accident and is reasonable and necessary in the circumstances: (a) the repair cost of a fallen retaining wall; (b) cleaning services every few months to complete tasks which require ladder climbing and, (c) further lawnmowing assistance. |
STATEMENT OF REASONS
INTRODUCTION
Bhuban Dahal (Mr Dahal), the claimant, was born in August 1970.
On 17 October 2020, Mr Dahal was injured in a motor vehicle accident (the accident).
Mr Dahal has brought a claim for common law damages for the injuries he sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited ABN 15 000 122 850 (Allianz) is the insurer.
A medical dispute about treatment and care (to be provided) has arisen in connection with that claim and Mr Dahal referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Ian Cameron determined on 24 February 2024 that the disputed treatment was related to the injuries caused by the accident but was not reasonable or necessary in the circumstances.
Mr Dahal lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 30 May 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has convened this Review Panel (Panel) to conduct the Review:
“I note the claimant’s reference to the Assessor’s line of reasoning namely that the cost of repairing the retaining wall is an item of home maintenance that would have occurred irrespective of the motor accident and accordingly not reasonable and necessary.
I accept the claimant’s submission that this line of reasoning may have misconstrued the meaning of attendant care services as treatment and care and as defined in section 1.4(1) of the Act.”
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
LEGISLATIVE FRAMEWORK AND RELEVANT CASE LAW
General
Mr Dahal’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer” in accordance with Part 3 of the MAI Act include:
“…
(b) treatment and care benefits under division 3.4.”
Unlike the previous scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The only mechanism for the recovery of the cost of treatment and care is through a statutory benefits claim.
Section 3.24 provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(c) the reasonable cost of treatment and care,
...
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Causation of injury
The insurer is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”.
This clearly requires the Panel to determine the injuries resulting from or caused by the accident (if there is a dispute about it) before determining whether the treatment relates to those injuries.
Treatment related to the injury resulting from the accident
The Panel notes the decision of AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 where the test of the relationship between surgical treatment and an accident was determined in a matter where the Motor Accident Compensation Act 1999 applied and where the claimant had sustained injury in three motor accidents. While a slightly different test applied under the 1999 legislation, the case remains relevant on the issue of “relationship”.
The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
Reasonable and necessary
In order for the insurer to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. The “reasonable and necessary” test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 his Honour Justice Grove in Clampett v WorkCover Authority of NSW [2003] NSWCA 52, stated:
“[22] I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd 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.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Mr Foti’s physiotherapy is “reasonable and necessary”.
In the circumstances
Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. The question of the relationship between accident and treatment is dealt with in the consideration of whether the accident caused the injury and the disputed treatment’s relationship to that injury, Therefore it may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury or a condition but if the injury or condition was not caused by the accident the claimant will not be entitled to statutory benefits for the treatment of that injury or condition.
The words “in the circumstances” in the context of whether a particular treatment is “reasonable and necessary” must therefore refer to the particular circumstances of the claim and the claimant in the proceedings before the Panel. As the members of another Panel said in the matter of Allianz Australia Insurance Limited v Vella [2021] NSWPICMP 214:
“That may mean that a particular claimant has subjective requirements that may mean that some treatment for a specific injury is reasonable and necessary whereas the same treatment for the same condition of a different claimant may not satisfy the test”.
In Bell v Allianz Insurance Australia Limited [2022] NSWSC 1108, Baston AJ was required to consider in the context of medical assessment of psychological injury, whether the cause of the injury was part of a motor vehicle accident.
It was held that the Medical Assessors had no power to determine the “scope of a motor accident” – it was not their job.
The underlying facts arose, when a man attempted to steal a Harley Davidson motorcycle, belonging to the plaintiff, in broad daylight from a carpark, where it had been temporarily parked, while the plaintiff went into nearby commercial premises. The plaintiff heard a person trying to start his motorcycle and ran after him. The man was unable to start the engine and was wheeling the motorcycle away. As the plaintiff closed in, the man saw him and pushed the motorcycle towards the plaintiff, so it fell on him, causing injury.
A medical dispute was referred to a Medical Assessor under the MAI Act, the Medical Assessor found that, of the psychological injuries referred to him, none was related to a motor vehicle accident.
At [15], Baston AJ held:
“… the Assessor was not required to determine whether the events which were the subject of the applicant’s injury, constituted a motor accident. The Assessor did this, and in so doing, strayed beyond the statutory limits under which he was confined, and did not conduct his assessment in compliance with the Guidelines.”
In the same way, Medical Assessor Cameron was referred the specific questions set out at paragraph 33 below, and none of these required him to challenge whether or not the injuries were sustained in a motor vehicle accident, but only, whether or not the treatment disputed were related to the injuries sustained in the motor vehicle accident.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b):
“whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron examined Mr Dahal on 9 February 2024 and issued the certificate with reasons on 24 February 2024.
The following treatment disputes were referred by the Commission for assessment:
(a) whether the request for repair cost of a fallen retaining wall relates to the injuries sustained in the subject motor vehicle accident;
(b) whether the request for repair cost of a fallen retaining wall is reasonable and necessary in the circumstances;
(c) whether the request for cleaning services every few months to complete tasks which require ladder climbing relates to the injuries sustained in the subject motor vehicle accident;
(d) whether the request for cleaning services every few months to complete tasks which require ladder climbing is reasonable and necessary in the circumstances;
(e) whether the request for further lawnmowing assistance relates to the injuries sustained in the subject motor vehicle accident and,
(f) whether the request for further lawnmowing assistance is reasonable and necessary in the circumstances.
Medical Assessor Cameron took a history of the accident at [10]:
“On 17 October 2020, Mr Dahal was a pedestrian with his children. He was hit by a vehicle. His children were not hit. Mr Dahal fell to the ground. An ambulance attended and he was taken to Liverpool Hospital where he had a multi-day admission. He sustained significant injuries to his lower extremities including a tibial plateau fracture. He said he had symptoms from both legs and both shoulders, as well as fractured ribs, low back pain and he said he had a blood clot. He said also that there was a facial injury and bilateral hand pain at the base of the thumbs developed.”
Medical Assessor Cameron noted that Mr Dahal said that he had not been able to return to work and he had also not been able to return to driving.
Mr Dahal’s current symptoms reported by Medical Assessor Cameron included:
“Mr Dahal said he had pain from the base of his thumbs, right shoulder, right elbow, both knees and low back pain. He said there had been some neck symptoms and he had an injection to his neck. He said there was difficulty getting up from the floor. Mr Dahal said he does need help at home. He said for outside work, there had previously been lawn mowing and hedge trimming help. He said that he sometimes uses the lawn mower.”
Medical Assessor Cameron conducted an examination, which was recorded at paragraph 15 of this certificate. He noted that there was inconsistent movement at both shoulders that Mr Dahal said was due to variable pain from both shoulders.
After summarising the evidence Medical Assessor Cameron determined the treatment was related to the injuries caused by the accident for the following reasons:
(a) in the motor vehicle crash on 17 October 2020, in which Mr Dahal was injured as a pedestrian, he sustained a fracture of the right proximal tibia, a mild traumatic brain injury, and multiple other injuries;
(b) he also had a pulmonary embolism;
(c) Mr Dahal has ongoing symptoms, and
(d) the requests for treatment would not have occurred had the motor vehicle crash not occurred, therefore causation is established.
With respect to whether or not the requests were reasonable and necessary, he said:
“…with reference to the cost of the repairing of a wall, it is difficult to see how this is within the scope of provision of services after a motor vehicle crash. This is an item of home maintenance that would occur irrespective of the motor vehicle crash. Therefore this ‘treatment’ is not reasonable and necessary. With reference to tasks requiring ladder climbing every few months, these are not usual parts of home maintenance and are therefore not reasonable and necessary. With reference to further lawn mowing services, it is now a significant time after injury and Mr Dahal is capable of performing those tasks. Therefore this ‘treatment’ is not reasonable and necessary.”
He determined that the following treatment and care was not reasonable and necessary in the circumstances:
(a) the request for repair cost of a fallen retaining wall;
(b) the request for cleaning services every few months to complete tasks which require ladder climbing and,
(c) the request for further lawnmowing assistance.
SUBMISSIONS
MR DAHAL’S SUBMISSIONS, DATED 27 MARCH 2024
Mr Dahal sought a review of the medical assessment certificate of Medical Assessor Cameron.
He referred to the section titled “20. Treatment and Care – reasonable and necessary” on page 6 of the Medical Assessment Certificate, Medical Assessor Cameron stated:
“…with reference to the cost of the repairing of a wall, it is difficult to see how this is within the scope of provision of services after a motor vehicle crash. This is an item of home maintenance that would occur irrespective of the motor vehicle crash. Therefore this ‘treatment’ is not reasonable and necessary. With reference to tasks requiring ladder climbing every few months, these are not usual parts of home maintenance and are therefore not reasonable and necessary. With reference to further lawn mowing services, it is now a significant time after injury and Mr Dahal is capable of performing those tasks. Therefore this ‘treatment’ is not reasonable and necessary.”
Section 1.4 of the MAI Act provides that treatment, and care includes attendant care services and that “attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
In section titled “19. Treatment and Care – Causation” on page 6 of the Medical Assessment Certificate, Medical Assessor Cameron stated: “The requests for treatment would not have occurred had the motor vehicle crash not occurred, therefore causation is established.”
On physical examination, the Medical Assessor found restricted range of movement to the shoulders, albeit variable due to pain, and restricted range of movement of the low back.
Medical Assessor Cameron determined that the cost of repairing the retaining wall was an item of home maintenance that would have occurred irrespective of the motor vehicle crash and accordingly not reasonable and necessary.
It was submitted that the Medical Assessor erred in his line of reasoning and conclusion. Following the Medical Assessor’s line of reasoning, the costs of things like lawn mowing services would not be covered as grass would grow and need lawn mowing irrespective of a motor vehicle crash. Mr Dahal performed home maintenance tasks prior to the motor vehicle accident. The cost paying someone to repair the retaining wall would not have occurred had the motor would not have been incurred had the motor vehicle crash not occurred as the he would have repaired the retaining wall himself.
The Medical Assessor acknowledged this in section Titled “19. Treatment and Care – Causation” on page 6 stating “The requests for treatment would not have occurred had the motor vehicle crash not occurred, therefore causation is established.” It was submitted that Mr Dahal had continuing problems to his back and shoulders affecting his ability to repair the retaining wall himself and accordingly that the request is reasonable and necessary.
In relation to ladder climbing, the Medical Assessor in his reasoning stated that assistance with cleaning tasks requiring ladder climber were not reasonable and necessary because “these are not usual parts of home maintenance and are therefore not reasonable and necessary.”
It was submitted that the Medical Assessor had erred in his reasoning as it was irrelevant whether the task of using ladder to clean a usual part of home maintenance to determine whether assistance for that task is reasonable and necessary. It was also submitted that it was also usual for some home maintenance and cleaning tasks to require a ladder, and that the Medical Assessor erred in his conclusion that ladder climbing was not a usual part of home maintenance. It was further submitted that the claimant had continuing problems to his back and shoulders affecting his ability to climb and reach and accordingly that the request was reasonable and necessary.
With respect to lawn mowing, Mr Dahal submitted that he has continuing problems to his back and shoulders affecting his ability to mow the lawn and accordingly that the request was reasonable and necessary.
ALLIANZ’S SUBMISSIONS IN REPLY, DATED 16 APRIL 2024
Part A: the repair cost of a fallen retaining wall
At paragraph 20 of the certificate, the Medical Assessor observed:
“… with reference to the cost of the repairing of a wall, it is difficult to see how this is within the scope of provision of services after a motor vehicle crash.”
Allianz submitted that view would be consistent with the findings of the Medical Appeal Panel and Review Panel in Warner v Insurance Australia Ltd t/as NRMA Insurance (No. 1) [2023] NSWPICMP 334 (18 July 2023). That matter related to a treatment dispute and in particular:
“The claimant’s letter to NRMA dated 14 December 2020 and his submissions explained that the claimant had intended to construct and complete the shed with his labour but could not do so because of his injuries. The claimant said the driveway had been excavated before the accident and was prepared for the laying of pavers and he had to employ someone do to that work because he could not do it.”
Treatment and care is defined within s 1.4 of the MAI Act and the Panel considered whether it would come within meaning (f) of attendant care services or (j) home and transport modification: -
(a) as to whether the activity amounted to attendant care services, it would appear the panel had some doubt that the cost of employing someone to lay the pavers would come within “everyday tasks’.
(b) In that matter the claimant specifically argued that the building work referred to ought come within home modifications. At paragraph 52 the Panel said:
‘Statutory benefits for modifying a home “for an injured person” would usually cover the provision of grab rails in bathrooms or ramps at the front or back door to improve accessibility to an existing home. Home modifications are undertaken because of and for the injured person’s injuries. Completing renovations commenced before the accident but which were unable to be completed because the claimant could not do so is not, in the panel’s view treating the claimant’s injuries or providing treatment for him and his injuries.’
(c) It continued, at paragraph 54: ‘The Panel is therefore of the view that the dispute between Mr Warner and his insurer about “home modifications” listed by the claimant is not a dispute about treatment and therefore not a medical assessment matter declared as such under Schedule 2(1). Medical Assessor Harrington and this Panel therefore have no power to determine a dispute.’
Whilst Medical Assessor Cameron may not have made specific reference to the relevant section of the MAI Act, his line of reasoning was consistent with the view expressed by the Review Panel in the matter of Warner. Allianz submitted that the rebuilding of a retaining wall would not come within the definition of home modifications nor would it amount to attendant care services as it could not be described as an everyday task which included home maintenance.
Part B: cleaning services to complete tasks which required ladder climbing
According to Mr Dahal’s original submissions to the Medical Assessor, cleaning services were sought every few months to complete tasks which required ladder climbing such as “cleaning above the kitchen cupboards and areas above shoulder level around the house”.
The Medical Assessor determined that tasks requiring ladder climbing every few months did not amount to home maintenance. It was apparent in making that determination the Medical Assessor had regard to the definition that required attendant care services to provide assistance with “everyday tasks”. Allianz submitted the Medical Assessor was correct in his determination and made no error in this regard.
Part C: further lawn mowing services
On page 6 of the certificate, Medical Assessor Cameron made the direct finding that Mr Dahal was capable of undertaking lawn mowing services. It was apparent that determination was based upon statements made to him by the claimant, medical information with which he had been provided, his findings on examination and his expert medical opinion as to the nature and extent of his injuries. It is respectfully suggested the Medical Assessor complied with his obligations under the Guidelines
OTHER RELEVANT MATERIAL
Review of the evidence
The Panel refers to Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079, who said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation ... Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
Ambulance report, 17 October 2020
The ambulance reported the following:
“C/T 50yoM pedestrian struck by car. Collision occurred in 60km/h speed zone - speed is unknown. Head strike indication on car windscreen. Pt laying on road with obvious facial trauma, c-spine supported by off duty AO Albertoni. O/E obvious epistaxis, laceration to chin, deformity to Right pretibial region with ?proximal tib/fib fracture, lower chest injury with swelling and pain to Right upper abdominal quadrant. NEURO: Pt agitated and talking about leaving the gas stove on at home. GCS14 (4,4,6), PEARL3, pedal pulse present, normal sensation and appropriate movement to distal limbs. CVS: nomocardic, normotensive, pedal pulses present CHEST: bilateral chest wall expansion, midline trachea, right upper quadrant swelling and pain. NOAD. Rx: spinal precautions, tpod pelvic binder, bilateral cannulas, analgesia given, antiemetic given. ICP in attendance who administered Ketamine – please see their case sheet for further details and pt assessment. Pt care handed over to MRU as pt was loaded onto stretcher. Please see their case sheet for further information.”
Hospital Discharge Summary, 17 October 2020
Mr Dahal presented with left lower quadrant pain, after being involved in polytrauma motor vehicle accident and was ventilated at the scene. He was admitted to the intensive care unit (ICU) and stepped down and was ready for discharge on 20 October 2020. His injuries included:
(a) significant facial injuries;
(b) CT scan – right proximal tibial fracture, no other injuries on CT scan;
(c) bruising left dorsal first finger;
(d) left chest tenderness, and
(e) right upper lip laceration.
Police report
The Police report of 8 December 2020 provided the following crash summary details:
“At 1220hrs on Saturday 17th of October, driver 1, 66-year-old male was driving a 2000 Silver in colour Holden Sedan upon Centennial Road Campbelltown, turning right onto Kellicar Road Campbelltown when he struck a pedestrian. The driver had right of way however the pedestrian also had right of way. Driver failed to give way, colliding into the pedestrian.”
Personal injury claim form, dated 23 October 2020
On the Personal injury claim form, Mr Dahal described the injuries he sustained as a result of the accident as:
“Neck, right arm, right shoulder, left arm, left shoulder, chest, back, right leg, right knee, left leg, nervous shock”.
Certificate of capacity
In the initial Certificate of capacity, Dr Lee provided the following diagnosis:
“polytrauma MVA – pedestrian Vs car – fracture right proximal tibia, fracture left 7th, 8th and 9th ribs, complicated by pulmonary emboli”.
Activities of daily living report (level 2), 7 June 2022
The report notes the injuries sustained as:
“As per Certificate of Capacity dated 02/06/2022 'head trauma, cervical spine radiculopathy, cervical spondylosis with moderate central canal stenosis and severe exit foraminal stenosis (MRI), bilateral shoulder strain, R) rotator cuff tear, labral tear (MRI), lumbar spine strain, bilateral knee strain, bilateral meniscal tear, R) tibia undisplaced fractured, PTSD symptoms, bilateral wrist strain, R) extensor pollicis brevis and L)abductor pollicis longus tenosynovitis, severe bilateral CMC joint OA (US), pulmonary embolism'. Bilateral lower lob collapse.”
At “Home maintenance” Mr Dahal reported he was previously independent with all lawn mowing, edging, weeding and hedging tasks. He was also reportedly independent with cleaning his gutters twice per year. He reported that if home maintenance or repairs were required, he would have completed these independently.
Mr Dahal’s observed abilities during assessment in relation to home maintenance was reported:
“Mr Dahal was observed to have significantly reduced range of movement of the right shoulder with arm shaking and shoulder drop supporting his current weakness. It was observed that the physical requirements of lawn mowing will involve carrying a lawn mower weighing ~25kg up and down steps as Mr Dahal's front and back yard has split level access. Mr Dahal is currently unable to carry a hedger or lawn mower or reach above shoulder level with the right arm and is as such is unable to complete lawn mowing or hedging. Mr Dahal reported he was previously independent with gutter cleaning twice per year by climbing ladders and cleaning items out of the gutters by hand. He is currently unable to climb ladders safely due to his right shoulder and bilateral knee injuries. He was observed having a two-storey house with high-height and angled gutters. The gutters were observed to have not been cleaned in some time as there were long weeds growing around the house. Mr Dahal reported that prior to his injury he would have been independent with repairing the retaining wall which has collapsed in his backyard as per photos on page 7. Mr Dahal reported that due to his right shoulder injury, he is currently unable to use a shovel to dig out the dirt which has collapsed or use hand tools to repair the retaining wall. Greenlight does not believe it is reasonable or necessary for Allianz to pay for these repairs.”
The following issues/barriers were reported:
(a) Mr Dahal reported he is attempting to complete light cleaning with his left hand, however advised he also has left shoulder pain and limitations which is unrelated to the compensable injuries. It was observed that the previously provided lightweight long-handled duster and squeegee were packed away and he had not attempted to use these. He reported using the lightweight stick vacuum and steam mop as provided. Mr Dahal was observed to have significantly reduced range of movement of the right shoulder with arm shaking and shoulder drop supporting his current level of weakness. Based on his compensable injuries, it would be anticipated he would be able to complete general dusting and cleaning with the long-handled cleaning equipment, however he is reportedly unable to do so with his left arm due to non-compensable injuries. Mr Dahal requested cleaning services every few months to complete tasks which require ladder climbing such as cleaning above the kitchen cupboards and the areas above shoulder level around the house.
(b) Mr Dahal was observed to have significantly reduced range of movement of the right shoulder with arm shaking and shoulder drop supporting his current weakness. It was observed that the physical requirements of lawn mowing will involve carrying a lawn mower weighing ~25kg up and down steps as Mr Dahal's front and back yard has split level access. Mr Dahal is currently unable to carry a hedger or lawn mower or reach above shoulder level with the right arm and is as such is unable to complete lawn mowing or hedging.
(c) Mr Dahal reported he was previously independent with gutter cleaning twice per year by climbing ladders and cleaning items out of the gutters by hand. He is currently unable to climb ladders safely due to his right shoulder and bilateral knee injuries. He was observed having a two-storey house with high-height and angled gutters. The gutters were observed to have not been cleaned in some time as there were long weeds growing around the house.
(d) Mr Dahal reported that prior to his injury he would have been independent with repairing the retaining wall which has collapsed in his backyard as per photos on page 7. Mr Dahal reported that due to his right shoulder injury, he is currently unable to use a shovel to dig out the dirt which has collapsed or use hand tools to repair the retaining wall.
Dr Todd Gothelf, orthopaedic surgeon, dated 26 August 2022
Dr Gothelf examined Mr Dahal on 12 August 2022 and took a history of the accident and subsequent treatment:
“Mr Dahal stated the accident occurred 17 October 2020. He was crossing the road at a green pedestrian light when he was struck by a vehicle. Mr Dahal was taken by ambulance to Liverpool Hospital and was unconscious. He remained in hospital for around ten days. He had no surgeries.
After he left the hospital, he went to see his GP. He was sent to Dr Soo, Orthopaedic Surgeon February 2021. He confirmed a right shoulder rotator cuff tear and left knee fracture. Mr Dahal was sent to physiotherapy. Surgery was done on the right shoulder August 2021 for a rotator cuff repair. Afterwards he did physiotherapy. With ongoing pain he had another MRI which showed part of the tendon was not healed. He is still doing physiotherapy.
Mr Dahal saw Dr Khong, Neurosurgeon and injections were done for his neck. Mr Dahal stated the lower back was less painful than the neck and shoulder. Mr Dahal stated the left knee had an injection April 2022 for ongoing pain. He does not recall when the left knee became more painful. He is doing physiotherapy. For the right knee he was doing physiotherapy. Mr Dahal stated he had no treatments for the left shoulder. He mentioned pain in the left shoulder. He does not recall when he first noticed pain.”
Dr Gothelf took a history of the treatment after the injury:
“22 February 2021 - Letter from Dr Gavin Soo, Orthopaedic surgeon Page 5
Initial consultation for ongoing bilateral knee pain and right shoulder pain after being hit by a car October 2020. He suffered a blood clot in the lungs, 3 ribs broken, right shoulder cuff tear, fracture to the right leg and injury to the left knee. He was placed in a right knee brace and given crutches.
Based on my clinical assessment which correlates with the findings on MRI scans, Bhuban has a full thickness tear of the supraspinatus and a fracture to the right proximal tibia. I have had a long discussion with him about the findings and his diagnosis. I have recommended non-surgical measures with physiotherapy, hydrotherapy, pain management and activity modification.
10 March 2021 - Letter from Dr Peter Khong, Neurosurgeon
Initial consultation after injuries as a pedestrian. Was crossing with two children when a car turned into him. Mr Dahal presents with neck pain, right shoulder pain, bilateral forearm and thumb pain, lower back pain and right knee pain after being hit by a car. His MRI cervical spine demonstrates degenerative disc disease at C5/6 and C6/7 with bilateral foraminaI stenosis at both of these levels. It is possible his forearm pain may be coming from C6 compression, i have recommended seeing if his pains improve with physiotherapy. I will review him in 2 months. If his forearm pain persists i will arrange for him to have bilateral C6 perineural injections.
13 August 2021 - Operation report, Dr Gavin Soo
Right shoulder arthroscopy, mini open rotator cuff repair and biceps tenodesis. Findings: High grade Partial articular sided supraspinatus tear with long head biceps tendinosis.
30 September 2021 - Letter from Daniel Chiovitti, Physiotherapist
Initial consultation 6 December 2021 - Letter from Dr Gavin Soo, Orthopaedic surgeon Review with MRI results, it appears very likely that he has aggravated his left knee patellofemoral arthritis as a result of overcompensation following his right tibia fractures. And this is evident by the oedema in the patella not being present at the previous MR! scan. There is also a small tear to the anterior horn of the lateral meniscus. To have cortisone injection into both knees.
16 May 2022 - Letter from Dr Gavin Soo
Telehealth consultation. Had cortisone injection to the left knee in January but did not help. Sees physiotherapist regularly. Right shoulder pain is becoming worse, to get MRI.
6 June 2022 - Letter from Dr Gavin Soo
Review with MRI report of right shoulder. I have explained that unfortunately it appears some of tendon that was repaired has not healed and that is likely the cause of his ongoing pain and restricted movement. There is still a 7mm tear of the supraspinatus. Unfortunately, sometimes despite repairing the tendon the body may not heal the tendon. Discussed non-surgical treatment of physiotherapy or revision surgery.”
Dr Gothelf came to the following diagnosis and opinion:
“Bhutan Dahal is a 52 year old male who was involved in a motor accident 17 October 2020. As a result of the subject accident Mr Dahal has the following diagnoses:
·Head injury
·Facial lacerations, right upper lip
·Right proximal tibial plateau fracture. ACT scan of the right knee 19 October 2020 revealed a comminuted proximal tibial fracture with intra-articular extension and mildly displaced fragments with a cortical depression of the lateral articular surface of 4mm. Mr Dahal reported persistent pain with activities.
·Left 7,8,9 rib fractures with pulmonary embolus.
·Right shoulder rotator cuff tear. Mr Dahal was seen by Dr Gavin Soo, Orthopaedic Surgeon 22 February 2021 who indicated that the MRI findings indicated a full thickness rotator cuff tear of the supraspinatus. He recommended initial conservative management. Mr Dahal underwent surgery 13 August 2021 for a right shoulder arthroscopy, mini open rotator cuff repair and biceps tenodesis. Mr Dahal underwent physiotherapy. Around May 2022 the right shoulder symptoms worsened. Mr Dahal underwent an MRI of the right shoulder 20 May 2022 which revealed a small tear of the supraspinatus. Mr Dahal reported persistent pain worse with activities.
·Left knee soft tissue injury. Mr Dahal underwent an MRI of the left knee 6 January 2021 which revealed signal in the medial meniscus and subacute chronic osteochondral lesion at the distal medial femoral condyle which were likely pre-existing findings and not caused by the subject motor accident. Mr Dahal reported persistent left knee pain with no swelling or locking.
·Cervical neck soft tissue injury. Mr Dahal underwent a cervical spine CT scan 17 October 2020 which revealed no acute traumatic injury. An MRI of the cervical spine.7 January 2021 revealed cervical spondylosis with central canal stenosis at C5/6, and severe bilateral C5/6 and left C6/7 neural exit foraminal stenoses due to uncovertebral osteophytes. Mr Dahal was seen by Dr Khong, Neurosurgeon 10 March 2021. He recommended physiotherapy. Mr Dahal reported persistent neck pain without radicular symptoms.
·Lumbar Spine soft tissue injury. Mr Dahal was seen by Dr Khong, Neurosurgeon 10 March 2021 and physiotherapy was recommended. Mr Dahal reported no pain at rest and some lower back pain with bending with no radicular symptoms.”
Dr Gothelf was asked to state the nature, expected duration and outcome of the following assistance:
(a) domestic cleaning;
(b) lawn mowing;
(c) home maintenance (i.e. gutter cleaning), and
(d) transport to medical appointments.
He responded:
“Mr Dahal lives with his wife and two children ages 13 and 12, so I would expect that there will be some family support for domestic duties. Mr Dahal stated he currently helps with house duties . From a physical perspective I consider that the family may manage domestic cleaning. He has received helped for the gardening until now. Based upon the objective pathology reviewed, I see no reason why Mr Dahal cannot re-start doing his lawn maintenance and home maintenance tasks. However, I understand that Mr Dahal has an experience of pain during these activities which makes it difficult. With regards to driving a car, Mr Dahal indicated that he is not driving for psychological reasons. As an Orthopaedic Surgeon, comments regarding his inability to drive is therefore out of my area of expertise.”
Dr Gavin Soo (orthopaedic surgeon)
Dr Soo reviewed Mr Dahal and reported on 26 August 2021:
“I saw Bhuban in the rooms today now 2 weeks post right shoulder surgery. The surgery went smoothly and the tear to his rotator cuff was repaired and stable. He was discharged the next day.
Since the surgery Bhuban tells me that his pain has been manageable and is taking Targin to help with the pain. Bhuban has been doing the exercises as instructed.
He has found the left shoulder continues to bother him. The left shoulder gives him pain on certain movements such as reaching behind him and elevating above shoulder height. He has difficulty sleeping at night. It clicks regularly.
On examination of the right shoulder his wounds have healed nicely. He is neurovascularly intact. Today I went through findings of the operation with him. I want him to remain in the sling for the next 4 weeks and I want him to start physiotherapy. I have given him my post-operative protocol.
I will speak to him in 4 weeks to check on his progress.
Bhuban complains of ongoing bilateral thumb pain. He would benefit from a referral to a hand specialist.”
On 6 December 2021, Dr Soo reported:
“I have been through the findings of the scans with him today. It appears very likely that he has aggravated his left knee patellofemoral arthritis as a result of overcompensation following his right tibia fractures. And this is evident by the oedema in the patella not being present at the previous MRI scan. There is also a small tear to the anterior horn of the lateral meniscus.
I would like Bhuban to get cortisone injections into both knees to see if this helps his pain. I am hopeful that we can avoid surgery at this point in time.”
On 6 June 2022, Dr Soo stated that:
“I have had a long discussion with Bhuban today. I have explained that unfortunately it appears some of tendon that was repaired has not healed and that is likely the cause of his ongoing pain and restricted movement. There is still a 7mm tear of the supraspinatus.
Unfortunately, sometimes despite repairing the tendon the body may not heal the tendon.
There are 2 options of management:
-Firstly we can manage it non-surgically with physiotherapy and ongoing pain management. The tear is unlikely to heal and he will just have to learn to manage the shoulder.
-The other option is revision surgery. This would be repeat repair of the tendon.”
Dr Peter Khong, neurosurgeon and spine surgeon
On 10 March 2021, Dr Khong noted:
“Mr Dahal presents with neck pain, right shoulder pain, bilateral forearm and thumb pain, lower back pain and right knee pain after being hit by a car. His MRI cervical spine demonstrates degenerative disc disease at C5/6 and C6/7 with bilateral foraminal stenosis at both of these levels. It is possible his forearm pain may be coming from C6 compression. I have recommended seeing if his pains improve with physiotherapy. I will review him in 2 months. If his forearm pain persists I will arrange for him to have bilateral C6 perineural injections.”
On 25 February 2022, Dr Khong reported:
“Mr Dahal continues to complain of bilateral neck pain, worse with flexion and when looking down for even short periods. He has degenerative disc disease at C5/6 and C6/7. He does not complain of clear radicular pain. He has pain in both thumbs which he states is due to arthritis (he did not have any of this pain before his accident). I have organised for him to have a repeat MRI of the cervical spine and a bone scan. I will review him after these have been done.”
On 29 April 2022, Dr Khong stated that:
“Mr Dahal continues to complain of midline neck pain in the absence of radicular arm pain.
His MRI again demonstrates severe degenerative disc disease at C5/6 and C6/7 which is reported hot on bone scan. If have explained to him that if his pain is intolerable, I would recommend a C5/6 and C6/7 anterior cervical discectomy and fusion. He will let me know if he wants surgery.”
THE PANEL’S EXAMINATION
At the first Panel meeting on 11 July 2024, the Panel concluded it would be necessary to conduct an examination in order to address the parties’ submissions in relation to the motor accident.
On 1 November 2024, Medical Assessor Margaret Gibson, conducted an examination on Mr Dahal on behalf of the Panel. He was unaccompanied and brought no imaging studies to the examination.
Medical history
Mr Dahal denied having suffered any prior injuries either at work or in motor accidents.
He had medicated hypertension and hypercholesterolaemia.
Relevant personal details
Mr Dahal lived with his wife and three children, aged 1, 13 and 14 years, in a double-storey four-bedroom (all upstairs), two-bathroom house in Campbelltown. He said they had been living there for five years and had purchased the property. Prior to this, they had been living in a single-storey, four-bedroom rented house.
The house was on a standard block, but the yard has a terraced configuration, with wooden retaining walls at each level. He said one of the retaining walls was damaged in heavy rain and was repaired about two and a half years ago.
They purchased a battery-operated mower about six months ago, and this was a lot lighter than their previous mower. He said either he or his wife did the lawn, although mainly his wife. He occasionally did the hedging, or else his wife or one of his neighbours.
When asked what type of domestic maintenance/construction work he had done in the past, he said that he had set up some garden edging.
He said they have very high sloping ceilings similar to a theatre, possibly he was describing a mezzanine level. And that cleaning of the ceiling involves either using a long-handled duster or hiring a professional with a long ladder. He had a smaller ladder at home.
He said his wife did most of the internal cleaning. He helped by making sandwiches and drying glasses. His mother-in-law had also been living with them for several months and she helped with cooking, cleaning and washing.
Mr Dahal said that they had had cleaning services for a period after the accident when he was very ill, but he did not find them that helpful. He volunteered that they were "more a headache" than anything else. They would do some vacuuming, sweeping and wiping of mirrors.
Past occupational history
Mr Dahal had worked as a professional chef for his entire life, both on a full-time and casual basis, and as a business owner of his own. He had last worked prior to the Covid epidemic, but he had to stop work during the shutdowns.
He has not worked in any capacity ever since.
History of the subject accident
Mr Dahal had been on a pedestrian crossing with his children when he was hit by the car. He said he was knocked to the ground. He remembered calling out to his son, but he couldn’t recall much else.
An ambulance arrived and he was conveyed to Liverpool Hospital. The ambulance report from the day of the accident had noted that the collision occurred at a 60kmph speed zone, but the speed of the driver was unknown. There was indication of head strike on the car window. Mr Dahal had been lying on the road with obvious facial trauma. On examination there was epistaxis, laceration to chin, deformity to right pretibial region with ?proximal tib-fib fracture, lower chest injury with swelling and pain to right upper abdominal quadrant. He was agitated. GCS was 14. There was normal sensation and appropriate movement to all distal limbs.
The Liverpool Hospital record noted that Mr Dahal had been hit by a car and sustained facial injuries with bleeding from his mouth. He was hypotensive and required transfusion. He was fitted with a hard collar and intubated as he was agitated. Secondary survey had revealed right frontal superficial bruising, right maxillary and nasal ala bruising, right upper lid 5mm laceration with active ooze, upper limb mucosal tear and blood in the oral cavity. There was no bruising of the chest. There were superficial bruises to both knees. He was admitted to ICU. It was noted whilst his GCS was 14, he was intubated at the scene.
The additional history recorded at the hospital was diverticulitis in 2020 and a history of alcohol misuse. When asked about this, Mr Dahal said that he now abstains from alcohol.
Mr Dahal was diagnosed with a right proximal tibial fracture. On discharge on 25 October 2020 he was non-weightbearing on his right lower limb and fitted with an unlocked range of motion brace and was to have repeat X-rays. He was also noted to have pulmonary emboli and nondisplaced left lower ribs fractures. He was commenced on and anticoagulant.
He was then under the care of his regular general practitioners, Drs Aung and Lee. There was an entry in Dr Aung’s notes of 31 October 2020, noting right tibial fracture and comment that he was wearing a splint for 6 weeks with orthopaedic review at Liverpool Hospital and a prescription of Endone and apixaban.
Dr Patrick Lee on 2 November 2020 noted Mr Dahal had sustained multiple fractures, including ribs and left proximal tibia, and that he had developed aspiration pneumonitis. He was mobilising on crutches and was to be reviewed by orthopaedic surgeon, Professor Harris.
By 9 November 2020, Dr Lee noted that he was still wearing a splint and had reduced the Endone to 5mg at night, was taking paracetamol 4g a day but "now he has pain everywhere since reduction of Endone dose especially the right shoulder."
There were a number of subsequent consultations with Dr Lee. On 15 November 2020, he notes bilateral thumb pain "painful both thumbs because the way he needs to use the crutches" and on 9 December 2020 "ache in both thumbs, lower back."
Mr Dahal had later come under the care of the Workers’ Doctors. When asked why he changed general practitioner, he said his lawyer had advised him to do so.
In February 2021 he was referred to orthopaedic surgeon, Dr Soo in relation to his right shoulder symptoms. Dr Soo had initially recommended nonsurgical treatment including physiotherapy, hydrotherapy, pain management and activity modification together with a cortisone injection to right shoulder. A cortisone injection was given, but Mr Dahal said this was unhelpful. On 10 May 2021, Dr Soo noted:
"Bhuban had the cortisone injection to the right shoulder. He tells me that the injection did help him for a period of time; however, the pain has returned and he still has marked restriction in his range of motion of the shoulder. Has marked difficulty with any activity above shoulder height and he has difficulty sleeping at night."
At that stage active flexion of the right shoulder was 90°, passive 110°, external rotation to 30°. He noted that "clinically he has symptoms and signs consistent with his findings on imaging of an acute full-thickness tear of his supraspinatus" and "prior to this injury Bhubn denies having any previous history of pain or injury to the shoulder."
Then, in August 2021, he underwent rotator cuff repair right shoulder.
Mr Dahal was also reviewed by neurosurgeon, Dr Peter Khong. On examination on 10 March 2021, Dr Khong had noted Mr Dahal was having difficulty abducting right arm at shoulder past 90° and there were some patchy sensory changes in his right upper limb. Neurologically, there were no other positive findings but there was pain at the base of the thumbs, reproducible on palpation. He concluded "he has degenerative disc disease at C5/6 and C6/7. He does not complain of clear radicular pain. He has pain in both thumbs which he states is due to arthritis (he did not have any of this pain before his accident)." He recommended repeat MRI of the cervical spine and bone scan.
Mr Dahal said he returned to the general practitioner about three months ago, as he was experiencing some lower back pain. Apparently, some imaging was performed and he was advised that he had arthritis in his back.
Current complaints
Mr Dahal described right-sided neck pain which is worse when he bends his head forwards. He said the neck pain is there most of the time. There was no radiation of pain or other symptoms into the upper limbs.
There is pain and restricted movements of his right shoulder, noticed particularly when trying to reach up, for instance when pulling clothes over his head, he said his wife helps him at times.
He said his left shoulder was "just normal."
There is bilateral thumb discomfort, even at rest, but worse when cutting food or in association with any pushing or pulling activity.
There is low back pain with prolonged sitting and at times when waking in the morning. There is no referred pain into his lower limbs.
There is pain felt deep in the right knee joint which is worse when walking up an incline or climbing stairs. There was no history of swelling, locking or giving way. There is left knee pain at times, particularly with attempted running or other more vigorous activities.
There were no other complaints.
Current treatment
Mr Dahal takes up to three paracetamol tablets a day, and rarely ibuprofen. He had last visited the general practitioner about three months ago.
He said that he signed up for the gym a few months ago, attends two to three times a week. He spends about an hour there, uses the treadmill and performs resistance exercises with weights as has been directed by his physiotherapist.
There was no other current treatment, and no treatment planned.
Imaging studies
Mr Dahal brought no imaging with him for the assessment.
The following were on file:
(a) MRI of the right shoulder on 11 December 2020: showed full thickness supraspinatus tear and possibly labral tear;
(b) MRI of the left knee on 6 January 2021 was reported as showing a medial meniscal tear. MRI of the left knee on 17 November 2021 was reported as showing progression of the medial meniscal tear, small parameniscal cyst and possibly traumatic patella bone contusion, the latter new when compared to the previous MRI performed in January 2021;
(c) MRI of the right knee on 6 January 2021 was reported as showing mildly displaced and impacted fracture of the proximal tibial meta diaphysis, and
(d) MRI of the right shoulder on 20 May 2022: showed full thickness supraspinatus tear and partial labral tear. There was mild acromioclavicular arthritis.
PHYSICAL EXAMINATION
Mr Dahal was right-hand dominant. He was 170cm tall and weighed 75kg. He had a mildly antalgic gait. He could walk on his heels and toes and squat fully.
On examination of the cervical spine, there was no specific tenderness. There was normal range of movement but with some grimacing while movements were performed. There was no asymmetry, muscle spasm or guarding.
On examination of the back, there was tenderness over the lower lumbar spine in the midline, but not elsewhere. Spinal movements were to full normal range with flexion possible to the ankles. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements were consistent with right-hand dominance, arms measuring 29cm, forearm 26cm on the right and 25cm on the left. There was normal power, sensation and reflexes bilaterally.
On examination of both shoulders, movements were consistent on repetition and accompanied by impingement on abduction on the right.
Active movements were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
140°
160°
Extension 50° 50° Internal Rotation 80° 50° External Rotation 80° 70° Abduction 90° 170° Adduction 40° 50°
On examination of the lower limbs, circumferential measurements were equal, thighs measuring 43cm, calves 39cm.
Lower limb power, sensation and reflexes were normal.
On examination of both knees, flexion was 120° bilaterally, right equals left. There was no crepitus and there was no instability demonstrated.
SUMMARY AND OPINION
The review is a new assessment of all matters with which the medical assessment is concerned. The Panel’s role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two medical specialists, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.
The Panel adopts the Medical Assessor’s extensive examination report subject to the reasons below and adds the following further reasons.
The Panel considered the Diab criteria (see paragraph 21) for what might be reasonable and necessary. This included:
(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.
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”.
Mr Dahal was a 54-year-old man who was struck when crossing a road on 17 October 2020. He sustained serious injuries and had remained in the hospital for over a week.
His ongoing symptoms related to his neck, low back, right greater than left shoulder, bilateral thumbs and bilateral knees. He finds the most disabling of these complaints are his right shoulder and right knee.
There was no relevant history of any ongoing musculoskeletal complaints prior to the subject accident. Now, he would struggle with activities requiring heavy or repetitive work at or above shoulder level or activities requiring prolonged standing, kneeling or squatting. These current impairments were caused by the subject accident and the need for treatment and care relate to the accident as these requests for treatment would not have occurred in the absence of the subject accident.
As he presented on this day, he would have difficulty repairing a retaining wall and certainly this would have been even more challenging two years ago when the job was completed. He would have problems climbing a ladder, as he would have difficulty holding on with both arms, due to restricted shoulder movements.
He would, and does do the lawn-mowing, but may have to pace himself and continue to use his current battery-operated lawnmower.
Allianz submitted that Medical Assessor Cameron’s line of reasoning was consistent with the view expressed by the Review Panel in the matter of Warner and that the rebuilding of a retaining wall would not come within the definition of home modifications, nor would it amount to attendant care services as it could not be described as an everyday task which included home maintenance.
The Panel accepts Mr Dahal’s submission that s 1.4 of the MAI Act provides that treatment, and care includes attendant care services and that “attendant care services mean services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
It is beyond the scope of the Panel’s role to determine the legal question of whether or not the repair of the wall was in fact “…an item of home maintenance, that would occur irrespective of the motor vehicle accident.” What was referred to the Panel, was whether or not the request for repair cost of a fallen retaining wall was reasonable and necessary in the circumstances, and the further question of whether the request for the repair cost of the fallen retaining wall, related to the injuries sustained in the subject motor vehicle accident.
These are different questions, and all that they required, was a consideration of the nature of the injuries relevantly sustained, and whether the repair cost was reasonable and necessary in the circumstances.
Determination
The Panel revokes the certificate of Medical Assessor Ian Cameron, dated 24 February 2024, and substitutes the determination to certify that the following treatment and care relates to the injury caused by the accident and is reasonable and necessary in the circumstances:
(a) the repair cost of a fallen retaining wall;
(b) cleaning services every few months to complete tasks which require ladder climbing, and
(c) further lawnmowing assistance.
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