Dahchan v Cic Allianz Insurance Limited
[2023] NSWPICMP 555
•6 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dahchan v CIC Allianz Insurance Limited [2023] NSWPICMP 555 |
| CLAIMANT: | Dalal Dahchan |
| INSURER: | CIC-Allianz |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Judith Davidson |
| DATE OF DECISION: | 6 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 3 May 2016 when a semitrailer collided with the right side of the vehicle she was driving; dispute as to whether domestic assistance is reasonable and necessary in the circumstances and relates to injuries caused by the accident; Medical Assessor (MA) accepted that the claimant may have aggravated underlying degenerative changes in the cervical spine and sustained whiplash injury in the accident, and that most of her symptoms in the right shoulder are referred from her neck and also have been caused by the accident; MA determined that for the first 12 weeks post-accident, the claimant would have required domestic assistance for 1.5 hours per week due to the pain and physical restrictions caused by her neck pain, range of movement and restrictions associated with pain and her right shoulder complaints; Held – Panel diagnosed that the accident caused a soft tissue injury to the cervical spine with temporary exacerbation of chronic pre-existing symptomatic degenerative cervical disc and facet joint disease and a soft tissue injury to the right shoulder; Panel found that the accident was not of sufficient severity to cause a small supraspinatus tear in the right shoulder shown on MRI scan imaging and that it was more likely than not that any soft tissue injury to the right rotator cuff as a result of the accident was minor; Panel found that the claimant did not injure her lower back in the accident because there was a delay in the onset of lower back pain after the accident; Panel determined that the soft tissue injuries to the claimant’s neck and right shoulder would have resolved within 6 weeks after the accident and that any continuing symptoms are the result of the progression of well documented pre-existing symptomatic degenerative disease affecting the neck, right shoulder and back; Panel found that the claimant is likely to have suffered an incapacity to perform heavier domestic tasks which impact on the upper body for a period of 6 weeks after the accident and that during this period 2 hours per week of domestic assistance is reasonable and necessary in the circumstances and relates to the injuries caused by the accident. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Treatment (Physical) Review Panel Assessment of Treatment (Physical) 1. The Review Panel revokes the certificate of Medical Assessor Castle-Burton dated 2. The Review Panel certifies that: (a) 0 to 10 hours per week (inclusive) of domestic assistance arising from the physical injuries from 3 May 2016 for a period of six months is not reasonable and necessary in relation to the injuries sustained in the subject accident, save as to subparagraph (b) below; (b) 2 hours per week in domestic assistance for a period of six weeks from |
STATEMENT OF REASONS
BACKGROUND
The claimant, Dalal Dahchan, suffered injuries in a motor accident on 3 May 2016 when a semi-trailer collided with the right side of the vehicle she was driving (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
CIC-Allianz (the insurer), is liable for the driver of the semi-trailer which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The claimant alleges she suffered injuries to the following parts of her body in the accident:
(a) cervical spine;
(b) lumbar spine;
(c) right shoulder;
(d) left knee;
(e) right knee, and
(f) right hand.
MEDICAL ASSESSMENT UNDER REVIEW
The present dispute before the Review Panel (the Panel) is:
(a) whether 0-10 hours per week (inclusive) of domestic assistance arising from the physical injuries from 3 May 2016 for a period of six months is reasonable and necessary in relation to the injuries sustained in the subject accident.
These constitute medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57-58 of the MAC Act.
The 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 disputes were referred to Medical Assessor Castle-Burton who issued a Certificate dated 18 January 2022 in which she determined that 1.5 hours per week (inclusive) of domestic assistance arising from the physical injuries from 3 May 2016 for a period of three months is reasonable and necessary in relation to the injuries sustained in the subject accident.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Marsh[3]
[3]. CB p.5.
Medical Assessor Marsh conducted an assessment of whether the degree of permanent impairment the claimant has as a result of the injury caused by the accident is greater than 10% and issued a certificate dated 11 June 2018.
The following injuries were referred to Medical Assessor Marsh for assessment:
(a) neck/cervical spine – musculoligamentous strain/tear/soft tissue injury;
(b) back/lumbar spine – musculoligamentous strain/tear/soft tissue injury;
(c) right shoulder – supraspinatus tendinopathy and tendinosis/soft tissue injury;
(d) left knee – chondromalacia patellae/soft tissue injury;
(e) right knee – chondromalacia patellae/soft tissue injury, and
(f) right hand – soft tissue injury.
Medical Assessor Marsh determined that the following injuries were caused by the accident:
(a) cervical spine – musculoligamentous strain and aggravation of degenerative changes;
(b) lumbar spine – musculoligamentous strain and aggravation of degenerative changes, and
(c) right shoulder – soft tissue injury with aggravation of degenerative change.
Medical Assessor Marsh did not consider that there would be any mechanism of injury to the knees in a side-swipe minor collision. In his opinion, it is more likely than not that the claimant sustained no injury to either knee causally related to the accident.
With regards to the right hand, the claimant did not mention any symptoms and Medical Assessor Marsh found that there was no clinical abnormality or indication of any impairment relating to the right hand on clinical examination.
Whilst an injury to the thoracic spine was not listed by the parties, Medical Assessor Marsh found that the following injury was caused by the accident:
(a) thoracic spine – musculoligamentous strain and aggravation of degenerative changes.
Medical Assessor Marsh determined that there was a 3% whole person impairment of the right shoulder without pre-existing or subsequent causes and that there was no impairment to the cervical spine and lumbar spine.
Medical Assessor Wijetunga[4]
[4] CB p.16.
The following treatment disputes were referred to Medical Assessor Wijetunga for assessment:
(a) whether the physical injuries give rise to a need for domestic assistance from 3 May 2016 to date of the MAS Assessment caused by the accident;
(b) whether 0 to 10 hours per week (inclusive of domestic assistance) arising from the physical injuries from 3 May 2016 to date of the MAS Assessment is reasonable and necessary;
(c) whether 0 to 6 hours per week (inclusive of domestic assistance) arising from the physical injuries from the date of the MAS Assessment to 20 December 2039 (remainder of the claimant’s life) is reasonable and necessary, and
(d) whether the physical injuries give rise to a need for domestic assistance from the date of the MAS Assessment to 20 December 2039 caused by the accident.
Medical Assessor Wijetunga noted from the clinical records that the claimant had a long history of neck, right shoulder, and lower back pain with referral into the right thigh. He was referred specifically to the clinical records demonstrating that the lower back pain was mentioned as recently as December 2015, five months before the accident, and that the treating general practitioner’s (GP) clinical records described ongoing neck and back pain for several years, rather than just episodic.
Medical Assessor Wijetunga noted that the nature of the accident was mild, given that the claimant’s car was driveable, no police or ambulance attended the scene and her car was subsequently repaired. She accepted that low speed motor vehicle accidents can be related to whiplash associated disorder and that given the lateral force from the semi-trailer, the claimant may have aggravated underlying degenerative changes of the cervical spine and also sustained a whiplash injury and that therefore an injury to the cervical spine has been caused by the motor accident.
In the opinion of Medical Assessor Wijetunga, in the absence of any direct trauma from airbags and given the mechanism of the accident, it is insufficient to result in a discrete injury to the right shoulder. However, Medical Assessor Wijetunga accepted that the majority of the claimant’s symptoms are referred from her neck and that therefore an injury to the right shoulder has been caused by the accident only in so far as whiplash associated disorder.
Medical Assessor Wijetunga noted that the first mention of lower back pain is from the Personal Injury Claim form in November 2016 and then mention of this by the claimant’s doctors in 2017 which reflects a delay of at least a few months after the accident. In the opinion of Medical Assessor Wijetunga lower back pain in the form of aggravation from trauma would have gradually onset from the first week and additionally the accident was not of a mechanism which would result in any significant lumbar flexion sufficient to aggravate her underlying condition. Therefore, the lower back condition is unrelated to the accident and is related to a natural progression of the claimant’s pre-existing condition.
Medical Assessor Wijetunga noted that the claimant was receiving gratuitous assistance from her daughters prior to the accident, referring to an entry in clinical records in May 2013 which reports that she required assistance with day to day activities including shopping, transfer and mobility. Medical Assessor Wijetunga accepted that the claimant’s whiplash associated disorder may have been of a severity in the first six months which would have necessitated domestic assistance, but that given the minor nature of the accident and the claimant’s pre-morbid condition, she would not have required any ongoing domestic assistance beyond this time or into the future, and further that she would not have required any domestic assistance related to her lower back injuries because the lower back injuries were not caused by the motor accident.
Medical Assessor Wijetunga made the following findings:
(a) the claimant’s physical injuries give rise to a need for domestic assistance from 3 May 2016 for six months;
(b) the claimant’s need for domestic assistance from the date of the MAS Assessment to 20 December 2039 (remainder of the claimant’s life) does not relate to the injuries caused by the motor accident, and
(c) 0 to 6 hours per week (inclusive) of domestic assistance arising from the claimant’s physical injuries from the date of the MAS Assessment to
20 December 2039 is not reasonable and necessary.Medical Assessor Wijetunga referred the question of whether 0 to 10 hours of domestic assistance arising from the claimant’s physical injuries from 3 May 2016 for a period of six months is reasonable and necessary back to MAS for referral to an occupational therapist.
THE REVIEW
It is not in dispute that the application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
On 13 April 2022, the President’s delegate referred the medical assessment of Medical Assessor Castle-Burton to the Panel as she was 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.[6]
[6] 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[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] 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.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[9]
[9] 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.[10]
[10] Section 63(3A) of the MAC Act.
THE ASSESSMENT UNDER REVIEW
The following treatment dispute was referred to Medical Assessor Castle-Burton for assessment:
(a) whether 0-10 hours per week inclusive of domestic assistance arising from the physical injuries from 3 May 2016 for a period of six months is reasonable and necessary in relation to the injuries sustained in the subject accident.
Medical Assessor Castle-Burton examined the claimant on 15 December 2021.
Medical Assessor Castle-Burton obtained a pre-accident history from the claimant that she had problems with her back and had intermittent physiotherapy over a number of years and that she denied any neck problems and reported being unrestricted physically and did not suffer any psychosocial history. When asked about another motor vehicle accident in 2000, she stated that it was only very minor and she did not sustain any injuries that required treatment.
The claimant provided a history to Medical Assessor Castle-Burton that on 3 May 2016 she was coming home from work at her son’s bakery and driving her vehicle slowly in the left lane and that a semi-trailer in the right lane moved into her line and collided with the right side of her vehicle. Her vehicle was drivable, and she drove home and neither the police nor the ambulance attended the scene of the accident. The claimant described being in shock and that she did not feel any pain for two to three days after the accident when she experienced back pain, lower back pain, neck pain and pain into her right arm. The pain continued over a couple of weeks after which she sought treatment at her GP’s practice but she did not see her usual GP. She was sent for X-rays and scans of her neck and an ultrasound of her right shoulder and prescribed pain medication. She was referred to physiotherapy but declined this treatment as it had not been of any benefit to her in the past. When she returned to see her usual GP at Bankstown, it was recommended that she attend physiotherapy and have cortisone injections. She was referred to Dr Rahme, orthopaedic surgeon, who arranged for a MRI scan of her right shoulder which reportedly showed a tear in the supraspinatus tendon, and she was offered an injection into her right shoulder with cortisone, which she declined.
The claimant denied having any further treatment or medical intervention for her injuries.
Medical Assessor Castle-Burton obtained details of the claimant’s pre-accident and present social situation, current symptoms, and her currently proposed treatment. She noted that the claimant currently takes pain medication, including Lyrica 75mg tablets at night and Endone 5mg tablets once a month and Panadeine Forte on occasions, but that she does not see any medical specialist or allied health service providers for treatment of her reported injuries.
With regards to the claimant’s employment status, Medical Assessor Castle-Burton noted that she no longer goes to work in her son’s bakery and that she had reported that she had tried to keep going to work for about six weeks following the accident, but that due to the sleep disruptions she experienced because of pain and her limited ability to stand due to back pain, she stopped being able to work and she also ceased driving to the bakery due to the pain this produced.
Medical Assessor Castle-Burton conducted a clinical examination of the claimant which involved observations of the claimant performing physical and functional tasks during the assessment. However, as the period under dispute relates to a historical period for the first six months following the accident on 3 May 2016, most of the information relating to the claimant’s physical functioning during this period was taken by Medical Assessor Castle-Burton from the contemporaneous medical evidence.
Medical Assessor Castle-Burton recorded information in relation to the claimant’s current physical presentation including her functional status, and activities of daily living.
Medical Assessor Castle-Burton commented on the claimant’s consistency. She noted that she presented as a poor historian for detailed information relating to her past medical history and her subsequent treatment and functioning after the subject accident. Whilst the claimant initially did not provide detail of her previous motor accident in 2000, when prompted, she did admit to it, but minimised the injuries she sustained in that accident. Her account of her pre-injury medical history was more simplistic than what is reported in the contemporaneous medical evidence. The claimant provided conflicting information regarding whether in fact she was receiving assistance with domestic tasks prior to the accident or not. She reported that she was receiving assistance from her daughters for shopping, meal preparation and heavy cleaning and laundry, however, corrected herself to report she was fully independent in domestic tasks and working in her son’s bakery often seven days a week, suggestive that she was managing her own domestic tasks.
Medical Assessor Castle-Burton noted that the claimant’s report of her current symptoms and her results on range of motion testing was similar in value to the most recent medical assessment of her by Medical Assessor Wijetunga on 17 May 2021.
Medical Assessor Castle-Burton took into consideration the following documentation:
(a) radiological and medical imaging of the lumbar spine, cervical spine and right shoulder during the period from August 2007 to May 2019;
(b) documents produced by Primary Health Care Medical and Dental Service;
(c) documentation relating to the claimant’s previous motor accident on
13 July 2000;(d) Personal Injury Claim Form;
(e) Medico-legal reports of Dr Thomas Sheehan dated 12 August 2017 and 31 October 2017;
(f) Medico-legal report of Dr Anthony Smith dated 22 November 2017;
(g) reports from the orthopaedic surgeon, Dr Rahme dated 21 February 2018 and 21 March 2018;
(h) Certificate of Medical Assessor Nigel Marsh of the Motor Accident Medical Assessment Service (MAS) dated 11 June 2018;
(i) Medico-legal report of Dr Vijay Maniam dated 30 October 2019, and
(j) Certificate of Medical Assessor of the Commission dated 17 May 2021.
Medical Assessor Castle-Burton formed the view that based on the evidence provided by Dr Maniam detailing significant lower back pathology, and consultation notes with her GP detailing body pain, neck and upper limb restrictions from 2000 to the date of the accident, the claimant would have been restricted from heavy aspects of domestic tasks due to her previous injuries including lifting and carrying heavy shopping, heavy household cleaning and laundry. In her view, it is more likely than not that the claimant managed the light aspects of domestic tasks and probably most of the cooking, light cleaning and some light laundry.
Medical Assessor Castle-Burton noted that since the accident and for the six months which is the period in dispute, the claimant reported experiencing low back pain, neck pain and pain to her right arm. She reported living with her adult son in an apartment she owned in Yagoona for 21 years and had two daughters living close by. She claimed to work in her son’s bakery in Panania every day from 5.00am to 2.00pm and being unrestricted physically and completed all her own domestic requirements and also assisted one of her daughters with her domestic requirements quite regularly. She described being fully independent in completing her personal care and did not access any assistance for shopping, meal preparation, heavy and light cleaning, laundry including bed changes and some maintenance tasks.
For the disputed period of the first six months post accident, the claimant reported that whilst experiencing physical limitation, pain and range of movement restrictions in her neck, back and right shoulder, she did not access any additional assistance for personal care or shopping but did rely on her daughters to complete the heavier aspects of household cleaning including the bathrooms, toilet, mopping floors, plus the heavy laundry and replacement of the reported involvement in household management.
Medical Assessor Castle-Burton accepted Medical Assessor Wijetunga’s opinion that the claimant may have aggravated underlying degenerative changes in her cervical spine and sustained a whiplash injury in the accident and accepted that most of her symptoms in the right shoulder are referred from her neck and have also been caused by the accident.
Taking this into consideration and the clinical guidelines for whiplash associated disorders, Medical Assessor Castle-Burton is of the view that for the first 12 weeks post accident, the claimant would have required some additional assistance to complete light domestic tasks including shopping, light cleaning and laundry for 1.5 hours per week due to the pain and physical restrictions caused by the neck pain, range of movement and restrictions associated with pain and her right shoulder complaints. However, after this time, she would have returned to her pre-injury level of function for which she was dependant predominantly on her daughters and son to help due to her pre-existing physical limitations to her back, neck and shoulders.
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. In particular, ss 5D and 5E of the CL Act apply to the MAC Act.[11] In Raina v CIC Allianz Insurance Ltd[12] 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 theCivil Liability Act 2002 (NSW), ss 5D 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.”
[11] See s 3B(2) of the CL Act.
[12] [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 PANEL
The Panel issued a direction dated 7 June 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in this Review.
In response to that direction, the claimant uploaded to the portal at AD7 a bundle of documents paginated from pages 1 to 70 (CB). The insurer uploaded to the portal at AD12 a bundle of documents paginated from pages 1 to 577 (IB).
The Panel issued further directions on 23 August 2022 including a direction to the claimant to upload to the portal and serve on the Insurer clinical records of all GPs who have treated her for the injuries she sustained in the accident. In response to that direction the claimant uploaded the following documents to the portal:
· AD8 – Primary Health Care Medical Clinical notes pages 1-100;
· AD9 – Primary Health Care Medical Clinical notes pages 101-200;
· AD10 – Primary Health Care Medical Clinical notes pages 201-300, and
· AD11 – Primary Health Care Medical Clinical notes pages 301-397.
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 51 to 53 above in making its findings and determinations.
SUBMISSIONS
Claimant’s submissions dated 15 June 2022[13]
[13] CB p.1.
The claimant submitted that the level of care and assistance required and received in the six month period following the motor accident exceeds six hours per week.
In support of this issue, the claimant refers to the Certificate of Medical Assessor Marsh who determined that the claimant sustained injuries to her cervical spine, lumbar spine, and right shoulder in the accident and assessed the whole person impairment arising from the injury to the right shoulder at 3% without any pre-existing or subsequent impairment.
The claimant submits on this basis that she had no pre-existing impairment to the neck, back or right shoulder prior to subject accident.
The claimant refers to Medical Assessor Marsh’s review of documentation set out on page 6 of his Certificate and submits that the radiological findings referred to support and are consistent with Medical Assessor Marsh’s determination of injury to the cervical spine, lumbar spine and to the right shoulder, including the MRI of the lumbar spine dated
3 August 2017, findings in relation to the cervical spine and report of Dr Mackie dated
24 May 2016, the ultrasound of the right shoulder dated 27 June 2016 and the MRI of the right shoulder reported by Dr Hanan dated 22 February 2018.The claimant submits that Medical Assessor Wijetunga erred in finding that she would not have required any domestic assistance related to her lower back injuries as the lower back injuries were not caused by the motor accident, because Medical Assessor Marsh in his certificate found that the claimant did injure her lumbar spine in the accident, and submits that the back injury/lumbar spine injury must be taken into account in assessing the claimant’s requirement for care and assistance because the findings of the injury to the lumbar spine as determined by Medical Assessor Marsh stand.
The claimant refers to the report of Dr Maniam dated 30 October 2019 and his opinion that the claimant required care and assistance in the 12 month period from the date of the accident at 3 hours per day for 2 days per week, a total of 6 hours per week, and submits that Dr Maniam in expressing this opinion had regard to pre-existing symptoms to the neck, back and right shoulder as referred to in his report.
The claimant submits that in the period leading up to the accident she did not require nor receive assistance from her daughters or any other party.
The claimant refers to the reference by Medical Assessor Wijetunga[14] to the entry in
May 2013 in the clinical records which report that the claimant required assistance including for shopping, transfer and mobility. The claimant submits that this is a one off reference in the clinical notes which make no reference to home cleaning, food preparation, vacuuming, ironing or personal care including showering and the like, and that limited weight should be given to this reference, and further that there are no other references to requirement for care from the May 2013 entry up to the date of the accident.[14] At para.23 p.14.
The claimant refers to the statements of the claimant’s two daughters, Talah El Damouni[15] and Hilani El Damouni [16] which set out that there was no assistance provided to the claimant by them in the period leading up to the motor accident and submits that the Panel should give due weight and consideration to the claimant’s assertions as to her requirements for assistance and level of assistance received and that the most appropriate method of assessment is a “face to face” assessment with the assistance of an interpreter.
[15] CB p.33.
[16] CB p.35.
The claimant submits that the claimant and her daughters are in the best position to give evidence as to the assistance provided as they were the persons respectively receiving and providing assistance during the relevant period of six months following the accident, and submits that the Panel should carefully consider the contents of the statements by the claimant and her two daughters in relation to this issue.
The claimant submits that she required and received assistance for her claim related injuries arising from the accident in excess of six hours per week for the six month period following the accident and the requirement for such assistance is causally related to the subject accident.
Claimant’s submissions dated 25 February 2022
These submissions were lodged in support of the application for review of the Certificate of Medical Assessor Castle-Burton.
The claimant submits that Medical Assessor Castle-Burton incorrectly/erroneously determined that 1.5 hours per week of domestic assistance arising from her physical injuries from 3 May 2016 for a period of three months is reasonable and necessary in relation to the injuries sustained in the motor accident and that this assessment is manifestly low and is not reasonable nor properly based.
It is submitted that Medical Assessor Castle-Burton’s assessment of care and assistance is contrary to the treatment determined by Medical Assessor Wijetunga to be caused by the accident because her assessment conflicts with the prior determination of Medical Assessor Wijetunga that the claimant required six months of domestic assistance. The claimant submits that Medical Assessor Castle-Burton incorrectly determined that the claimant only required care and assistance for a period of three months contrary to Medical Assessor Wijetunga, who determined that care is required for a period of six months following the accident.
It is further submitted that Medical Assessor Castle-Burton did not give proper regard to the evidence of the claimant during the assessment of her that she conducted on
15 December 2021.It is submitted that Medical Assessor Castle-Burton did not criticize the claimant’s credit and that in the circumstances she ought to have given greater weight to the evidence of the claimant as to her needs and requirements for care and assistance.
In support of the proposition that the claimant is a credible witness, these submissions note that Medical Assessor Castle-Burton stated that the claimant’s report of current symptoms and her results on range of movement testing were similar in value to the most recent Commission’s medical assessment (Medical Assessor Wijetunga’s) on 17 May 2021, but that the findings and determination made by Medical Assessor Castle-Burton as to the past care requirements are not in accordance nor consistent with the evidence that the claimant provided to her and the earlier determination by Medical Assessor Wijetunga.
It is submitted that generally Medical Assessor Castle-Burton ought to have given greater weight to the claimant’s own account of her limitations and restrictions and requirements for assistance.
It is submitted that a material change to the outcome made by Medical Assessor Castle-Burton would result if greater and proper weight to the evidence of the Claimant was accepted by the Medical Assessor, and that Medical Assessor Castle-Burton incorrectly assessed the claimant’s requirements for care and assistance, as it was previously determined by Medical Assessor Wijetunga that the physical injuries give rise to a need for domestic assistance from 3 May 2016 for a period of six months from the date of the accident.
Insurer’s Reply submissions dated 23 March 2022[17]
[17] IB p.1.
The insurer relied upon these submissions in reply to the claimant’s application for review of the Certificate of Medical Assessor Castle-Burton.
The insurer submits that Medical Assessor Castle-Burton was not required to adopt Medical Assessor Wijetunga’s assessment and her conclusion that the accident gave rise to a need for assistance for the six months following it.
It submits that section 61(2) of the MAC Act provides that a Certificate issued by a Medical Assessor is binding only on the Commission and a court insofar as it relates to matters for damages assessment, however, there is no provision which binds one Medical Assessor to a Certificate issued by another Medical Assessor.
It submits that Medical Assessor Wijetunga’s assessment and Certificate did not bind Medical Assessor Castle-Burton because Medical Assessor Wijetunga’s opinion simply formed a part of a body of evidence that needed to be considered by Medical Assessor Castle-Burton in her assessment, and further that Medical Assessor Castle-Burton was required to formulate her own opinions as to the extent and duration of care and assistance required.
The insurer submits that it is clear that Medical Assessor Castle-Burton considered Medical Assessor Wijetunga’s assessment as it is referred to repeatedly in her assessment, and further that, to the extent that there was an inconsistency between the two assessments, Medical Assessor Castle-Burton set out the rationale as to her own conclusions at page 17 of her Certificate.
The insurer further submits that the claimant has not explained how the alleged error in Medical Assessor Castle-Burton’s Certificate is material.
The insurer submits that the assertion by the claimant that Medical Assessor Castle-Burton found the claimant was credible is incorrect and ignores the balance of Medical Assessor Castle-Burton’s commentary regarding the claimant’s consistency on assessment in which the Medical Assessor states that the claimant presents as a poor historian, initially did not provide detail of her previous motor accident in 2000 but did so when prompted, that her account of her pre-injury medical history is more simplistic than what is reported in the contemporaneous medical evidence, and that the claimant provided conflicting information regarding whether in fact she was receiving assistance for domestic tasks prior to the accident or not - initially the claimant reported that she was receiving assistance from her daughters, corrected herself to report that she was fully independent in domestic tasks and working in her son’s bakery suggestive that she was managing her own domestic tasks.
Accordingly, the insurer submits that Medical Assessor Castle-Burton was not required to accept the claimant’s self-reporting.
In any event the insurer submits that the claimant’s self-reporting as to the extent of assistance she required is not a determinative factor. The Medical Assessor was right to consider the extent of care and assistance that was reasonable and necessary having regard to the nature of the injuries the claimant had suffered as a result of the accident.
The insurer submits that there was clearly no error in Medical Assessor Castle-Burton’s findings in so far as they were premised on conclusions surrounding the claimant’s credibility. The Medical Assessor did not find the claimant a credible witness and in those circumstances it cannot be said that the Medical Assessor should have accepted her self-reporting.
Further it is submitted that the errors alleged by the claimant in Medical Assessor Castle-Burton’s Certificate are not material because if those errors were rectified the claimant would still not be entitled to damages for care and assistance given the threshold imposed by s141B(3) of the MAC Act, and that for these reasons the President or his delegate would not have any reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in any respect, let alone a material respect.
Insurer’s MAS 1A submissions dated 18 December 2019[18]
[18] IB p.18.
These submissions were lodged by the Insurer in support of an application disputing the Claimant’s claim and entitlement to past and future care and assistance.
The insurer submits that the following dispute exists:
(a) past gratuitous assistance of 0 to 10 hours per week (inclusive) from 3 May 2016 to 15 January 2020;
(b) future gratuitous assistance of 0 to 6 hours per week (inclusive) for the period from 16 January 2020 to 20 December 2039, and
(c) future commercial assistance of 0 to 6 hours per week (inclusive) for the period from 16 January 2020 to 20 December 2039.
In support of this application, the insurer submits that the claimant suffers from a multitude of pre-existing non-accident related conditions evidenced in the documents produced by Primary Health Care Medical and Dental Centre under subpoena, including pre-accident references to neck and lower back symptoms, shoulder pain, elbow pain, abdominal pain, nausea, general body aches, pain affecting the hands and fingers, depression, issues affecting her toes and feet, thigh and hip pain following a fall in about October 2011 and generally, and also dizziness.
The insurer submits that these conditions must be borne in mind when considering whether any care needs did in fact arise as a result of the accident or due to other factors.
The insurer further submits that the accident-related injuries would not have manifested in the need for any extensive care and assistance and that the medical evidence, including imaging, confirms that the claimant’s injuries were minor in nature, and that in view of this the claimant would have been able to attend to all domestic duties at a self-paced rate. It is also submitted that the claimant’s ability to travel overseas on no less than two occasions freely indicates that the accident has had little impact on her daily functioning.
The insurer submits that the claim for past and future gratuitous care and commercial assistance is not reasonable nor is it necessary to the extent at which it is claimed, or at all, and that any such care and assistance is not required as a result of the accident. The insurer requests that the Medical Assessor determine what amount of care is required by the claimant as a result of the accident, if any, and the manner in which the dispute is framed.
The insurer submits that the accident did not cause any injuries capable of giving rise to a need for care and assistance, and that the assistance claimed is neither reasonable nor necessary, and that any care and assistance would have arisen as a result of the numerous pre-existing conditions it refers to.
Claimant’s MAS 1R submissions dated 12 February 2020[19]
[19] IB p.570.
These submissions were lodged by the claimant in response to the insurer’s MAS 1A Application for assessment of the treatment dispute in relation to the claim for care.
The claimant submits that the insurer’s MAS 1A Application in so far as it relates to proposed future care/future treatment (on a voluntary and/or commercial basis) ought to be declined and rejected. The details of the proposed future care/future treatment is not treatment which has been formally recommended by the claimant’s treating practitioners.
The claimant makes the following additional submissions in relation to the past and future care claim.
The claimant submits that the insurer has not demonstrated that the claimant required care and assistance prior to the subject accident nor that her current requirements for care and assistance arising from purported pre-accident medical conditions and restrictions. In support of this submission the claimant relies upon the following medical evidence which refers to pre-existing conditions afflicting the claimant:
(a) report of Dr Sheehan dated 12 August 2017;
(b) report of Dr Manion dated 30 October 2019, and
(c) report of Ms Grinter, occupational therapist, dated 18 October 2019.
The claimant submits that the claims for past and future care are proper and reasonable in the circumstances and arise directly as a result of the injuries sustained in the accident, and further that she did not require nor did she receive care and assistance prior to the subject motor accident.
The claimant emphasises the findings made on numerous radiological investigations of the lumbar spine and right shoulder to submit that the insurer’s submission that this imaging revealed no demonstrable pathology, except for pre-existing degenerative changes, is incorrect.
RE-EXAMINATION
Medical Assessor Davidson assessed Mrs Dahchan for the purposes of this review at her residence on Monday, 8 August 2022, with the assistance of an interpreter, Hafez Assoum. The examination report is as follows:
“Mrs Dahchan was 73 years of age at the time of the assessment.
Home Environment
Mrs Dahchan lives in a 2-bedroom apartment on the second floor of a walk-up block in Yagoona which she has owned for 21 years. The unit consists of 2 bedrooms and 1 bathroom with a large bath, shower recess, vanity sink and separate toilet. The main unit door enters an open plan living and dining room with tiled floor surfaces. There is a sliding security door that accesses the tiled patio.
The kitchen is situated off the main area and is a large space with modern appliances.
There are 3 to 4 flights of stairs for her to walk up from the lower area where her car space is located as the building has no lift. The yard and gardens are maintained by the body corporate.
Social situation
Mrs Dahchan was assessed in the same apartment where she had lived for the past 21 years. She owns the apartment. Her son was at home at the time of the assessment but left soon after.
She stated she is provided with assistance by both her son and her daughters, Talah and Hilani. She denied any chronic physical health problems prior to the accident.
Mrs Dahchan stated to me that she worked in her son’s bakery in Panania 3 to 4 days per week prior to the motor vehicle accident on 3 May 2016. She denied being restricted physically prior to the accident and could walk unrestricted, work and complete all of her own domestic requirements. She stated that she assisted both her daughters with their domestic requirements 2 to 3 times per month.
Mrs Dahchan stated she did all her domestic tasks independently prior to the motor vehicle accident and she denied having help from a carer in May 2013. Mrs Dahchan stated that her general practitioner, Dr Haddad, was wrong when he said this in the letter he wrote in May 2013. Mrs Dahchan stated that her daughters wrote her statement and were wrong in stating that she was not working at the time of the accident. She said that she did not know where they got this information from, and she insisted that prior to the accident she helped her daughters domestically most days of the week.
Clinical Examination
My clinical examination involved observations of Mrs Dahchan during the completion of the assessment.
At the time of the assessment Worst in the past 12 months Right shoulder 8/10 10/10 Low back pain 10/10 10/10 Mrs Dahchan stated that she had pain before the accident occasionally but it was never persistent.
Mrs Dahchan was adamant that she was working in the bread shop at the time of the accident because she was driving home from the bread shop when the accident occurred.
Prior to the accident Mrs Dahchan only went to her daughters’ places to assist but only when they asked her to come.
Mr. Dahchan stated that she never needed the assistance of others for her domestic tasks prior to the accident. She specifically stated she never needed her son’s assistance.
Mrs Dahchan said that she still has her car but no longer drives because turning the steering wheel is too painful for her right shoulder.
Mrs Dahchan said that she never goes out alone from the unit and sometimes does not go outside for a week.
Mrs Dahchan said she can make a light sandwich or cup of coffee or wash up 1 or 2 plates.
After the accident for 2 to 3 weeks Mrs Dahchan said she continued to do her own domestic tasks but as the pain did not go away she stopped all these activities and never resumed them.
Mrs Dahchan was unable to identify how often tasks are done and how long it takes stating ‘if someone comes’.
Mrs Dahchan stated that she went to Bankstown Medical Centre after the accident for physiotherapy and this was paid by Medicare.
Mrs Dahchan denied telling Assessor Castle-Burton that she did not attend physiotherapy because it had not worked before the accident.
Mrs Dahchan stated that she is not disabled. She said that she tries to do things but stops when pain stops her. She can use the clothes hoists to hang out light things and bring them in again.
Functional StatusPOSTURE, FUNCTIONAL MOBILITY, BALANCE AND GAIT, LIFTING AND CARRYING
DYNANOMETER – POWER GRIP Left Hand Right Hand 4.75 cm width grip 4, 8, 8 kg 12 kg, 6, 6 Mrs Dahchan demonstrated the following capacities during the assessment:
· She acknowledged her right hand was her stronger hand but that the right shoulder was the painful shoulder so she found it difficult to use the right hand.
· She walked with difficulty but did not use a walking stick,
· She used the stairs to the unit at my request and held onto the rail while putting both feet on each step. She was slower coming up than going down.
· She used the lightweight vacuum cleaner at my request. She plugged it in to the power board on the floor. It had not been turned off but she was able to turn it off and turn it on again and then she vacuumed a small area of the floor and tried to stand upright.
· She stated she used a chair in the shower after the first 2 to 3 weeks post accident because she was afraid of falling over. The chair she uses is kept on the balcony.
· Mrs Dahchan demonstrated restrictions in her right shoulder range of movement as indicated below. She was also assessed taking off her cardigan and putting it on again and her behaviour was absolutely consistent with her objective range. She took her cardigan off on her left shoulder first but then could not put it on again because she tried to put it on her left shoulder first. She kept trying. When I suggested she put in her right arm first, she was successful. She said that she gets assistance with dressing from her daughters if they are around.
· She was asked to reach up high to get a woollen garment off the shelf and she used her left arm solely to do this. This was reaching to her maximum reach with at least 170 degrees of shoulder elevation (consistent with the report of Dr. Sheehan but inconsistent with Assessors Wijetunga, Anna Castle-Burton and Nigel Marsh).
· Throughout the assessment, Mrs Dahchan complained of back and shoulder pain. However, she attempted all tasks. She stated that she had not used the vacuum cleaner since the motor vehicle accident.
LEFT RIGHT Reach to the sky Able She was unable to get her shoulder above about 90 degrees Put hand behind head Able Unable Put hand behind back Able Unable Put hand to toes Able Pick up a 2 litre carton of orange juice from the floor Able Plug in the vacuum cleaner onto a power board on the floor Able Reach to a high shelf above her head for a cardigan Able but only used left hand Reach for a cup from the cupboard above her head Able but only used left hand Reach into the bottom shelf of the fridge and remove a 2 litre full bottle of orange juice Yes with difficulty. Picked up with left hand but had to lift with 2 hands to put it on the bench. Then did the reverse to put it back int the fridge on the bottom shelf.
THE QUEBEC BACK PAIN DISABILITY SCALE (QBPDQ)
The Quebec Back Pain Disability Scale measures functional disability in patients with back pain. The patient indicates the perceived difficulty associated with completing simple physical activities. Mrs Dahchan scored 21.25% which indicates a severe level of functional disability. Activity domains affected by back pain are measured by the scale: 5 is unable to do, 4 is very difficult, 3 is fairly difficult, 2 somewhat difficult, 1 minimally difficult and 0 not difficult at all.
DOMAIN SCORE get out of bed 2 turn over in bed 2 put on socks 2 stand for 30 minutes 0 ride in car for 1 hour 1 climb 1 flight of stairs 2 sit for 4 hours 1 walk several blocks 0 reach to a shelf 2 9. walk several kms 0 sleep through the night 1 Move a chair 0 squat 2 run 1 block 0 make a bed 0 bend over to clean bathtub 0 take food out of the fridge 2 lift 20 kg 0 push or pull heavy doors 0 carry 2 bags groceries 0 Total 17/80 21.25% CONTEXTUAL FACTORS: DISABILITY OF THE ARM, SHOULDER AND HAND ASSESSMENT (DASH).
The DASH is a 30-item self-completed questionnaire which was developed to measure the function and symptoms associated with any musculoskeletal condition in the upper limb. It was developed by the American Academy of Orthopaedic Surgeons and the Institute for Work and Health as a region-specific questionnaire. It contains 21 physical function items, 6 symptom items and 3 social/role function items. It measures the patient's perception of their disability. A lower score indicates a better health status.
On this assessment Mrs Dahchan scored 72% on the DASH. The score has a distribution across the 3 different sections. This is a very severe level of disability.
DISABILITY OF THE ARM SHOULDER AND HAND No difficulty (1) Mild difficulty (2) Moderate difficulty (3), Severe difficulty (4) unable (5) 1. Open a tight or new jar. 4 2. Write. 2 3. Turn a key. 4 4. Prepare a meal. 4 5. Push open a heavy door. 5 6. Place an object on a shelf above your head. 5 7. Do heavy household chores (e.g., wash walls, wash floors). 5 8. Garden or do yard work. Not applicable 9. Make a bed. 5 10. Carry a shopping bag or briefcase. (with 2 litres of milk & loaf of bread) 4 11. Carry a heavy object (over 10 lbs). 5 12. Change a light bulb overhead. 5 13. Wash or blow dry your hair. 5 14. Wash your back. 4 15. Put on a pullover sweater. 4 16. Use a knife to cut food. 2 Subtotal 63
DISABILITY OF THE ARM SHOULDER AND HAND 17. Recreational activities which require little effort (e.g. cardplaying, knitting, etc.) 2 18. Recreational activities in which you take some force or impact through your arm, shoulder or hand e.g., golf, hammering, tennis. 5 19. Recreational activities in which you move your arm freely (e.g., playing frisbee, badminton, etc.). 5 20. Manage transportation needs getting from one place to another). 5 21. Sexual activities. Not applicable Not at all, (1) Slightly limited (2), Moderately limited (3), Limited quite a bit (4), Extremely limited (5) 22. During the past week, to what extent has your arm, shoulder or hand problem interfered with your normal social activities with family, friends, neighbours or groups? 4 23. During the past week, were you limited in your work or other regular daily activities as a result of your arm, shoulder or hand problem? (circle number) 5 None (0), Mild (1), Moderate (2), Severe (3), extreme (4) 24. Arm, shoulder or hand pain. 5 25. Arm, shoulder or hand pain when you performed any specific activity 4 26. Tingling (pins and needles) in your arm, shoulder or hand. 4 27. Weakness in your arm, shoulder or hand. 3 28. Stiffness in your arm, shoulder or hand. 4 No difficulty (1), mild (2), moderate (3), severe, (4) cannot sleep (5) 29. During the past week, how much difficulty have you had sleeping because of the pain in your arm, shoulder or hand? 4 Strongly disagree (1), disagree (2), neutral (3), agree (4) Strongly agree (5) 30. I feel less capable, less confident or less useful because of my arm shoulder or hand problems. 4 Total score (117/140 which becomes 87/110) 72% Domestic Indoor
The indoor domestic tasks are listed above. Mrs Dahchan said that she did all the cleaning inside. Since the accident she had cleaners monthly for 4 hours until the pandemic and since then her husband’s sisters have assisted with this.
Domestic Outdoor
The outdoor domestic tasks are listed above. Mrs Dahchan said that she did some gardening but her son said he did all the lawnmowing and weeding prior to the motor vehicle accident.
Home MaintenanceThe home maintenance is listed above. This was always her husband’s responsibility.
Comments on consistency
There were multiple inconsistencies during the assessment and in Mrs Dahchan’s presentation when compared with the documentation.
INCONSISTENCIES
Information presented in documentation Conflicting information presented in other documentation or during her presentation in the assessment. Letter from her GP, Dr Haddad, dated 16 May 2013 advising that she suffered from multiple chronic medical conditions and needed assistance with her day to day activities and needs and support from her so Mrs Dahchan denied this and stated this was incorrect. She said that she may have fallen over and needed help short term There is considerable documentation in the medical record regarding long standing back pain
Mrs Dahchan acknowledged to the occupational therapist, Carolyn Grinter, in October 2019 that she suffered intermittent back painMrs Dahchan during the assessment denied any past injury or back pain apart from very intermittently Assessor Wijetunga recorded that Mrs. Dahchan had advised her that she was receiving assistance from her daughters for most of the shopping and housework prior to the motor vehicle accident. She denied acknowledging to Assessor Wijetunga that she was receiving gratuitous assistance from her daughters for most of the shopping and housework prior to the motor vehicle accident. She stated she was fit and fully healthy at the time of the motor vehicle accident and in the years prior to the motor vehicle accident She said in her statement dated 2 June 2022 that she was not working at the time of the accident Mrs Dahchan stated this was incorrect and she worked in her son’s bakery 3-4 days per week Her daughters’ statements dated 2 June 2022 said that Mrs Dahchan provided assistance to each of them several times per week Mrs Dahchan stated she only provided assistance to them when they requested it. This would have been 2-3 times per month for each of the 2 daughters. She never attended every week In the Personal Injury Claim form Mrs. Dahchan denied any illnesses or injuries to the same or similar body parts as were injured in the accident and denied any previous medical or health history that would impact on her recovery In the claim form the injuries are listed as back and spine, neck and spine and right shoulder and there are multiple reports in her treating clinical records of pain in these parts of the body prior to the motor vehicle accident The first presentation to her GP was 21 days after the motor vehicle accident Mrs Dahchan stated this was not true and she attended her GP 3 days after the accident. I stated that this was not recorded in her GP notes. Mrs. Dahchan said that he had made a mistake Assessor Castle-Burton reported that Mrs Dahchan said that she did not attend physiotherapy following the accident. Assessor Wijetunga stated that Mrs Dahchan had attended physiotherapy following the motor vehicle accident Mrs Dahchan stated she attended physiotherapy funded by Medicare on at least 5 occasions but she did not get any benefit. She talked about the chronic extended care programme Assessor Castle-Burton reported that following the accident Mrs Dahchan did not require additional assistance for shopping but she shopped more often. Mrs Dahchan stated she stopped shopping independently 2 to 3 weeks after the motor vehicle accident and this task has only been done with the assistance of her daughters since that time Assessor Castle-Burton reported that she continued to cook whilst sitting following the motor vehicle accident Mrs Dahchan stated she stopped preparing meals after the accident and that all of the main meal preparation has been done by others Assessor Castle-Burton reported that Mrs Dahchan continued with some light cleaning and mopping and sweeping and laundry but only required help with heavier tasks Mrs Dahchan denied reporting that she was able to do light cleaning and stated she ceased cleaning 2 to 3 weeks following the motor vehicle accident and that all cleaning and laundry have been done by others Carolyn Grinter in October 2019 reported a standing tolerance of 10 minutes and a walking tolerance of 15 minutes and that she was driving locally, and that she could lift 2kg from the floor Mrs Dahchan stated that her walking tolerance is several hundred metres maximum and her standing tolerance is 5 minutes. Mrs. Dahchan stated she had ceased driving 3 weeks after the motor vehicle accident. Mrs Dahchan said that she did lift 2 kg from the floor with extreme difficulty and it is not a task that she would do unless she has no other option Ms Grinter recorded a left shoulder range of motion of 130 degrees in October 2019 During the assessment Mrs Dahchan achieved a full range of movement of her left upper limb. She only had restrictions in her right upper limb Ms Grinter in 2019 recorded that Mrs Dahchan was still driving and that she was able to shop independently for a few items Mrs Dahchan stated that she ceased driving 2 to 3 weeks after the motor vehicle accident and that she could not do any shopping independently Her presentation during the assessment was entirely consistent with the level of disability described by her GP, Dr Haddad, in his letter dated May 2013. Mrs Dahchan stated that she had never been more disabled than she was during my assessment. Mrs Dahchan presented as being significantly disabled and her actual presentation was largely consistent with a need for high levels of domestic assistance. However, she was co-operative and attempted all tasks including vacuuming and reaching high and making a cup of tea and coffee and picking up 2 litres of milk from the floor (after dropping it several times). Most of her current incapacity in domestic tasks is due to back pain.”
FINDINGS
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 medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Limited v Keen[20] and Insurance Australia Limited v Marsh.[21]
[20] [2021] NSW CA 287 at [40], [41] and [45].
[21] [2022] NSW CA 31 at [11], [21], [64].
The Panel adopts Medical Assessor Davidson’s examination report and adds the following further reasons.
The clinical records and medical reports relied upon by the parties clearly demonstrate that prior to the accident on 3 May 2016, the claimant had had a lengthy history of suffering from multiple chronic medical conditions including degenerative disease affecting the neck, right shoulder and back which are clearly identified on radiological imaging.[22]
[22]See voluminous clinical records from Primary Health Care Medical Clinic at AD8, AD9, AD10 and AD11.
The claimant provides no information in her statement as to the circumstances of the accident.[23]
[23] CB p.31.
In the Personal Injury Claim Form, the claimant describes what happened in the accident as follows:
“1. Vehicle YSR 645 being driven by the claimant was heading north along Queens Street Revesby NSW.
2. Unidentified truck (vehicle no.1) was also heading north in lane to the right of vehicle YSR 645.
3. The said truck veered left and struck the driver’s side at vehicle YSR 645 at or about the said intersection of Queen Street and Canterbury Road Revesby NSW.
4. Both vehicles were in motion at the time of the collision.”[24]
[24] IB p.25.
At paragraph 14 of the Personal Injury Claim Form, the claimant has drawn a picture of the accident consistent with the description above.[25]
[25] IB p.24.
The police report records the following description of the accident:
“Dahchan states she was involved in a collision on Queens St Revesby on 3/5/16 about 11.15am where a truck allegedly side swiped her vehicle. Both drivers stopped and exchanged details and went on their way.”[26]
[26] IB p.33.
Medical Assessor Castle-Burton recorded the following history of the motor accident:
“On 3 May 2016, Mrs Dahchan was coming home from work at her son’s bakery, and according to her driving slowly in the left lane. She reported a semi-trailer in the right lane moved into her lane and collided with the ride side of her vehicle. Both cars moved off road and exchanged information. However, the driver of the other vehicle reportedly provided false details to her.
Her vehicle was driveable, and she drove home. Neither the police nor ambulance attended the scene.”[27][27] At para.9.
Medical Assessor Marsh records the following history of the motor accident:
“The claimant said that she was driving slowly in the left lane, she said that a truck in the right lane hit the right side of the vehicle. She said that her vehicle was subsequently driveable and she drove home. She said that her vehicle was repaired. She said that she was wearing a seatbelt and that no airbags were activated. She said that the police and ambulance were not in attendance.”[28]
[28] CB p.7.
Medical Assessor Wijetunga records the following history of the motor accident:
“Mrs Dahchan describes the motor vehicle accident on 3 May 2016, at which time she was driving a Toyota four door in the left lane. She reports a semi-trailer in the right lane, collided with the right side of the vehicle an [sic] scraped the right side of the back door. She does not recall her vehicle being pushed into the left lane.
She was able to self-extricate and exchanged details.
Police and ambulance did not attend.
She was able to drive her vehicle.She reports that her vehicle was repaired.”[29][29] CB p.20.
Based upon the descriptions of the circumstances of the accident referred to above, the clinical and medical records and reports relied upon by the parties and Medical Assessor Davidson’s re-examination and report, the Panel has diagnosed that the claimant suffered the following injuries in the accident:
(a) soft tissue injury to the cervical spine with temporary exacerbation of a chronic-pre-existing symptomatic degenerative cervical disc and facet joint disease (as shown in imaging before and after the accident with no acute traumatic lesions such as lateral disc protrusion, only multi-levelled degenerative disease), and
(b) soft tissue injury to the right shoulder (as shown on imaging as a small supraspinatus tear and surrounding tendinosis).
The Panel agrees with the opinion of Medical Assessor Marsh that the accident was not of sufficient severity to cause this tear and therefore the tear is likely to be a degenerative finding. Whilst Dr Rahme says that he has arranged cortisone injections to the subacromial space, there is no evidence in the clinical records from the claimant’s GP that the claimant underwent this procedure. Whilst the Panel accepts that there may have been some soft tissue injury to the rotator cuff of the right shoulder given the mechanism of the accident whereby the claimant’s vehicle was side swiped by the semi-trailer, we do not consider that there would have been sufficient force in this impact to have resulted in the full-thickness tear shown on the MRI scan on 22 February 2018, but that it is more likely than not that any soft tissue injury to the right rotator cuff as a result of the collision was minor.
The Panel agrees with the opinion of Medical Assessor Wijetunga that the claimant did not injure her lower back in the accident because:
(a) there was a delay in the onset of lower back pain after the accident. The Personal Injury Claim Form does not make reference to an injury to the lower back and the first report of symptoms in the lower back to the claimant’s GP is on 23 February 2017, some nine months after the accident, and
(b) the clinical records from Primary Health Care Medical and Dental Centre record in December 2015, approximately five months before the accident, that the claimant had been suffering from lower back pain for a few years and needed physiotherapy[30], which is supported by numerous references in those records to ongoing low back pain as far back as August 2000.
[30] IB pp 142-143.
Using its clinical judgment and experience, the Panel has determined that the soft tissue injuries to the claimant’s neck and right shoulder of the nature diagnosed above would have resolved within six weeks after the accident, and, once they had resolved any continuing symptoms are the result of the progression of the well documented pre-existing symptomatic degenerative disease affecting the Claimant’s neck, right shoulder and back which were clearly seen on imaging.
The Panel notes the numerous inconsistencies in the evidence in relation to the following, as identified in the re-examination report of Medical Assessor Davidson and arising from the statements of the claimant and her daughters and the clinical records of her treating GP:
(a) the extent of the claimant’s capacity to perform domestic duties prior to the accident due to the degenerative conditions in her neck, right shoulder and lower back;
(b) whether the claimant was being provided with domestic care and assistance prior to the accident by her daughters due to these pre-existing conditions, and
(c) whether the claimant was working at her son’s bakery prior to the accident.
In particular, the Panel refers to the following inconsistencies:
(a) whilst the claimant in her statement says that she was not receiving any care and assistance at all in relation to her housework and looking after her home unit prior to the accident and this is corroborated in the statements by her daughters including their evidence that they did not provide their mother with care and assistance at all before the accident, in a letter from her GP, Dr Haddad dated
27 October 2014, he certifies that the claimant suffers from multiple chronic medical conditions and is currently unable to continue attending a childcare management course due to complications with these medical conditions,[31] and, in a letter from Dr Haddad dated 16 May 2013, he notes again the claimant’s chronic medical conditions and that her son, Dani, who lives with her, is the main carer for his mother, taking care of her day to day needs and requirements, and that she needs assistance with day to day activities and needs including shopping, transfer and mobility in addition to him being with her at night for support and security,[32];and(b) the claimant insisted when assessed by Medical Assessor Davidson that for two to three weeks after the accident she continued to do her own domestic tasks, but because the pain did not go away, she stopped all of these activities and never resumed them. However, in her statement, the claimant says that in the 12 month period following the accident, both her daughters provided her with care and assistance and she was unable to do the housework due to her ongoing pain and discomfort and restrictions relating to her neck, back and right shoulder.[33]
[31] AD8.
[32] AD8.
[33] CB p.31 at para.7.
In the Panel’s clinical judgment and experience, the usual course for soft tissue injuries such as those which have been identified to the claimant’s neck and right shoulder caused by the accident, is the onset of symptoms within the first couple of days with maximal effect on the patient’s capacity to perform activities of daily living for the first four to six weeks followed by steady improvement and return to usual function, which, on the claimant’s evidence has not occurred here. If, as the claimant asserted to Medical Assessor Davidson, she was able to return to work for three weeks after the accident and during that period was able to perform her pre-accident domestic duties and activities, in the opinion of the Panel, the recovery period from the soft tissue injuries to the neck and the right shoulder is likely to have been shorter than six weeks.
Nonetheless, and despite these inconsistencies and the minor nature of the soft tissue injuries to the claimant’s neck and right shoulder caused by the accident, it is the Panel’s opinion that she is likely to have suffered an incapacity to perform heavier domestic tasks which impact on the upper body, including hanging out washing, scrubbing and mopping, for a period of six weeks from the date of the accident on 3 May 2016, and the Panel finds that during this period 2 hours per week of domestic assistance is reasonable and necessary in the circumstances and relates to the injuries caused by the motor accident. In the opinion of the Panel, any domestic assistance in addition to this during the period of six months from the date of the accident on 3 May 2016 was not reasonable and necessary in the circumstances and does not relate to the injuries caused by the motor accident.
CONCLUSION
The Panel revokes the Certificate of Medical Assessor Castle-Burton dated 18 January 2022. A replacement Certificate is attached at the commencement of these Reasons.
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