Dougherty v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Dougherty v Allianz Australia Insurance Limited [2025] NSWPICMP 40
CLAIMANT:	Rosyln Dougherty
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Gary Victor Patterson
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	20 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to treatment and care, causation, reasonable and necessary, improving recovery; claimant attempted to cross the road and was struck forcefully by the insured SUV on her left-hand side, insured driver attempted to flee but was restrained by passers-by and subsequently charged; claimant was transported to St Vincent’s Hospital by ambulance; claimant sustained fractures to her pelvis, cervical spine, lumbar spine and her skull; claimant sustained numerous other injuries; insurer denied liability for ongoing carer services from 25 August 2023 (more than 3 years post-accident) as no longer caused by accident-related injuries; Medical Assessor Cameron certified that need for ongoing care not related to the accident, not reasonable and necessary, nor likely to improve recovery; issues as to causation and onus of proof; Held – Review Panel satisfied that claimant has a need for ongoing care services, after 25 August 2023, in relation to all of the injuries referred for assessment; Review Panel satisfied that such care is reasonable, necessary and likely to improve recovery of injured person; certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – CAUSATION – REASONABLE AND NECESSARY – IMPROVING RECOVERY *Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017* (the Act) 1. The Review Panel revokes the certificate dated 1 April 2024 and issues a new certificate determining that: (a) The following treatment and care: · ongoing carer services after 25 August 2023 in relation to the pelvis; · ongoing carer services after 25 August 2023 in relation to the cervical spine; · ongoing carer services after 25 August 2023 in relation to the lumbar spine; · ongoing carer services after 25 August 2023 in relation to the skull fractures; · ongoing carer services after 25 August 2023 in relation to the lungs; and · ongoing carer services after 25 August 2023 in relation to vertigo, does relate to the injury caused by the motor accident; and is reasonable and necessary in the circumstances; and will improve** the recovery of the injured person.

STATEMENT OF REASONS

INTRODUCTION

On 20 June 2020, Rosyln Dougherty (the claimant) attempted to cross the road at the corner of Ocean Avenue and Cross Street, Double Bay. The claimant had only taken a few steps from the footpath when, suddenly and without warning, she was struck forcefully by the insured vehicle on her left-hand side. The impact of the collision caused the claimant to be thrown into the air. She bounced off the roof of the insured SUV, then the bonnet, before landing with such force that she slid approximately 3m across the road. The impact caused the claimant to momentary lose consciousness. The claimant was transported to St Vincent’s Hospital by ambulance. The claimant sustained fractures to her pelvis, cervical spine, lumbar spine and her skull. The claimant sustained numerous other injuries.
The claimant was later told by police, who had reviewed webcams, that she had taken two steps into the road, being struck by a vehicle which had come around a corner quickly, failed to stop behind a car that was parallel parking, had illegally crossed a solid line in the roadway before striking the claimant, at high speed. The driver of the insured vehicle apparently attempted to abscond from the scene but was restrained by passers-by.
The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
On or about 13 September 2020, the insurer approved care services for the claimant’s injuries sustained in the accident. This approval was for two hours per day, five days per week. This approval was reviewed intermittently. Carer services were provided up to
25 August 2023.
On or about 14 April 2023, Ms Aisling Walsh, Registered Nurse, Clinical Coordinator, in the employ of Reliant Healthcare, reported that the current need for carer services related to injuries and symptoms to the claimant’s arms and hands.
By letter dated 21 May 2023, the insurer declined liability for ongoing carer services on the basis that the claimant’s upper limb injuries were not caused by the subject accident. The decision to decline liability for ongoing carer services was confirmed upon internal review.

ASSESSMENT UNDER REVIEW

There is a dispute between the parties about:
·        whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Act;
·        whether any treatment and care relate to an injury caused by the accident under Schedule 2, s 2(b) of the Act, and
·        whether treatment or care provided will improve the recovery of the injured person under Schedule 2, s 2(c) of the Act.
Each of those disputes related to injuries to the claimant’s pelvis, cervical spine, lumbar spine, skull fractures, lungs, as well as to the claimant’s vertigo. Those disputes were referred by the Personal Injury Commission (Commission) to Medical Assessor Ian Cameron for determination.
Medical Assessor Ian Cameron certified on 1 April 2024 as follows:

The following treatment and care:

·      Ongoing carer services after 25 August 2023 in relation to the pelvis.

·      Ongoing carer services after 25 August 2023 in relation to the cervical spine.

·      Ongoing carer services after 25 August 2023 in relation to the lumbar spine.

·      Ongoing carer services after 25 August 2023 in relation to the skull fractures.

·      Ongoing carer services after 25 August 2023 in relation to the lungs.

·      Ongoing carer services after 25 August 2023 in relation to vertigo.

DOES NOT RELATE TO THE INJURY caused by the motor accident; and

IS NOT REASONABLE AND NECESSARY in the circumstances; and

WILL NOT IMPROVE the recovery of the injured person.

OTHER ASSESSMENTS

Medical Assessor Cameron previously determined a separate treatment dispute between the parties arising from the subject accident. Medical Assessor Cameron certified on
15 September 2023 as follows:

The following treatment and care:

The proposed admission to St Vincent’s Private Hospital for Iga level and trial of an induction therapy with IVIg associated with brachial plexus

DOES NOT RELATE TO THE INJURY caused by the motor accident; and

IS NOT REASONABLE AND NECESSARY in the circumstances.

Medical Assessor Cameron found that the available information suggests that the claimant’s left upper extremity problems relate to an injury to the brachial plexus. He did not agree with the diagnosis of the treating neurologist, Dr Bolitho, that the claimant suffered a chronic inflammatory demyelinating polyneuropathy as a result of the accident. Given that Medical Assessor Cameron was satisfied that the claimant suffered a brachial plexus injury in the accident, the basis of his conclusion is not clear. However, that certificate is not the subject of the present review.

THE REVIEW

The claimant sought a review of Medical Assessor Cameron’s latter certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect.
The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submits that, had Medical Assessor Cameron properly considered all of the available evidence and properly examined the claimant, he would have found that the ongoing treatment and care does relate to the injuries caused by the motor accident.
The claimant particularised that Medical Assessor Cameron:
(i)    Conducted the medical assessment in the absence of any imaging studies, and consequently, failed to request that the claimant’s imaging studies be made available to him prior to finalising his report.
(ii)    Failed to conduct a proper review and evaluation of all the available evidence under cl 6.18(a) of the Permanent Impairment Guidelines (the Guidelines). It was submitted that Medical Assessor Cameron failed to properly consider the claimant’s submissions, and the clinical findings of Dr Mark Winder (neurosurgeon), Dr Diana Chang (general practitioner), and Mr Anup Mangipudi (occupational therapist).
(iii)   Failed to properly conduct an interview and clinical examination in respect of the claimant’s medical condition as per cl 6.18(b) of the Guidelines.
(iv)   Failed to provide any reasoning for his decision that the claimant did not require carer’s services.
The claimant’s review application was opposed by the insurer on various grounds. It is not necessary to deal with those submissions in detail as they were not accepted by the President’s delegate. Briefly, the insurer noted that Medical Assessor Cameron stated that he had regard to all of the multiple radiological reports and all of the available evidence. The insurer submitted that Medical Assessor Cameron conducted a proper review and evaluation of all the available medical evidence. He interviewed the claimant and set out her current symptoms including the vertiginous type symptoms which he found to be a pre-existing health condition. The insurer submitted that Medical Assessor Cameron had regard to the claimant’s other extensive medical history. It was stated that Medical Assessor Cameron’s explanation of his path of reasoning was clear and obvious.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 10 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was the Medical Assessor’s failure to provide a clear path of reasoning concerning the assessment made, and thus how he arrived at the ultimate determination, particularly in respect of any opinion formed concerning injury and causation based on the available evidence. President’s delegate Wigan referred particularly to the claimant’s submission that the Medical Assessor did not provide any reasons for concluding that “the vertigo is a pre-existing health condition”.
Accordingly, the review application was accepted and was referred to the Review Panel which is to assess all of the injuries referred to Medical Assessor Cameron, unless the parties otherwise agree.

STATUTORY PROVISIONS

A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] 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 proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act. See s 3B(2) of that Act.
Causation of injury is addressed in the Guidelines as follows:
“6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factored could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factored did caused or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question “Would this injury (or impairment) have occurred if not for the accident?” may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs v IAG Limited t/as NRMA Limited.[4]See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This require, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1)    a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2)    a review of all relevant records available at the assessment;
(3)    a comprehensive description of the injured person’s current symptoms;
(4)    a careful and thorough physical examination;
(5)    diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

MATERIAL BEFORE THE REVIEW PANEL

The claimant relied upon the following material which the Review Panel has considered:

(a)    Claimant’s review submissions (previously summarised).
(b)    Claimant’s statement dated 1 May 2024.
(c)    Claimant’s submissions in support of treatment of and care.
(d)    Reports of Dr Drew Dixon, orthopaedic surgeon, dated 16 June 2021 (x2).
(e)    Reports of Dr John Sheehy, consultant neurosurgeon, dated 3 November 2021 (x2).
(f)    Reports of Dr Martin Allan, consultant psychiatrist, dated 12 May 2021 (x2).
Qualified medico-legal reports
(g)    Report dated 12 May 2021 by Dr Martin Allan, consultant psychiatrist, to the claimant’s lawyers.
Dr Allan gives a detailed description of the circumstances of the accident, the injuries sustained in the accident as well as the claimant’s previous personal and medical history. Dr Allan notes that the claimant did not report any stressors impacting her mental health that were not related to the accident. Dr Allan gives a detailed description of the claimant’s mental state examination. Dr Allan records that the claimant has ongoing psychological treatment but does not see a psychiatrist.
Dr Allan diagnosed post-traumatic stress disorder, major depressive disorder and a somatic symptoms disorder with predominant pain that has become chronic. He relates those conditions to the accident. Dr Allan opines that the claimant needs extensive psychiatric and psychological treatment immediately. Dr Allan notes that post-traumatic stress disorder and major depressive disorder are both non-minor injuries under the Motor Accident Guidelines. Dr Allan did not provide an assessment of whole person impairment (WPI) as he thought that the claimant’s condition had not stabilised.
(h)    Reports of Dr Drew Dixon, consultant orthopaedic surgeon, dated 16 June 2021 (x2) to the claimant’s lawyers.
Dr Dixon gives a detailed description of the accident, the claimant’s social and work history, her general health, current treatment, present symptoms and his physical examination. He describes the radiological investigations which showed fractures to the pelvis, as well as a fracture to the transverse process of L5, a fracture to C3 in the claimant’s neck and a non-displaced left parietal bone fracture. Dr Dixon makes the following diagnosis:
“1.    Healed pelvis fractures with sacroiliac screws remaining in-situ.
2.Fractured L5 transverse process with post-traumatic lumbar stiffness, dysmetria and facet arthralgia clinically with left lateral thigh pain.
3.Neck strain injury with post-traumatic stiffness, dysmetria with other trapezial muscle pain and facet arthralgia with C3 fracture.

4.     Healed fracture in the sphenoid region.
5.     Post-traumatic stress disorder requiring psychological counselling.
6.     Reliance on Lyrica for neuropathic pain in the left upper extremity.
7.     Impaction of her injuries on activities of daily living with the need for a carer.
Dr Dixon attributes all of those conditions to the injuries sustained in the accident. He notes that the claimant did not require surgery for her C3 fracture but did wear a neck brace for some 3 months. Dr Dixon records that the claimant has a carer coming 5 days a week and assistance with transporting heavy groceries into her apartment. He states that her prognosis for being able to return to all her household chores is guarded and that the claimant requires ongoing assistance from her carer.”

In a separate permanent impairment assessment, Dr Dixon opines that the claimant has:
(i)5% WPI for a whiplash injury to the cervical spine with a fracture at C3 (Table 73 AMA 4);
(ii)5% WPI for the displaced transverse process fracture at L5 (Table 72 AMA 4), and
(iii)10% WPI for the pelvic fracture (Table 3.4 AMA 4), giving a combined 19% WPI.

(i) Report dated 18 September 2021 by Dr Edward Korbel, urologist, to the claimant’s lawyers.
Dr Korbel conducted a remote Telehealth (Zoom) assessment. Dr Korbel records that the claimant has gradually developed bladder symptoms since the accident. He opines that the claimant sustained haematuria due to the trauma sustained in her pelvis. No surgery was performed for that condition. She had an indwelling catheter for some weeks and was treated conservatively in the absence of evidence of bladder rapture. As the claimant’s bladder symptoms were continuing, Dr Korbel thought that the claimant should be assessed by a treating urologist. Although her condition had not stabilised, Dr Korbel thought there was no permanent impairment due to an urological injury. Dr Korbel gives no opinion regarding the claimant’s need for treatment and care.

(j)    Report dated 5 October 2021 by Dr Michael McGlynn, plastic and oral surgeon, to the claimant’s lawyers.
The claimant informed Dr McGlynn that her right facial abrasions healed without any visible scarring or abnormal skin colour. The abrasions to the right side of her body healed in a similar fashion with no visible scarring. The claimant said that she is conscious of scarring over both hips at the sites of pin fixation and screw insertion. The claimant said those scars are inconspicuous and cause her no discomfort. Dr McGlynn noted asymmetry of her pelvis with the right side more prominent than the left. Dr McGlynn found no evidence of any pre-existing skin condition or scarring that has been aggravated by the accident. In his opinion, no further surgical treatment is required for her scarring, which needs daily application of moisturiser. The prognosis is good. The scarring is stable and is unlikely to deteriorate over time.
In a separate impairment report, Dr McGlynn applied the Table for Evaluation of Minor Skin Impairment (TEMSKI) (Table 6.18 in the Motor Accident Authority Guidelines) and opined that 2% WPI is the best fit.
(k)    Reports dated 3 November 2021 of Dr John Sheehy, consultant neurosurgeon, to the claimant’s lawyers.
Dr Sheehy records that the claimant complained of vertiginous symptoms and difficulty with her balance. There are no symptoms with her memory. There is a past history of Meniere’s disease. The claimant also complained of paraesthesia in the left arm radiating into her left hand. She complained of posterior pelvic pain and radiation to the lateral thigh as far as the knee.
Dr McGlynn opined that, as the result of the accident, the claimant sustained a neurological injury with the development of impaired balance and vertiginous symptoms, with impaired ability to walk heal-toe, and as a consequence, difficulty with safe walking. He noted the claimant sustained a C3 fracture which was managed conservatively. Dr McGlynn found that the claimant’s condition has stabilised from a neurological point of view. There was no aggravation of any underlying neurological condition. Dr McGlynn opined that the prognosis for improvement was remote. He expressed no opinion as to the claimant’s need for care and treatment. He assessed 5% whole person impairment arising from minimal impairment of equilibrium.
(l)    Report dated 16 May 2023 by Mr Anup Kumar Mangipudi, occupational therapist, to the claimant’s lawyers.
Mr Mangipudi interviewed the claimant in her Edgecliff residence which he describes. Mr Mangipudi gives a detailed summary of the claimant’s past history and general health including her activities of daily living prior to the accident. He conducted a physical examination and tabulated his detailed findings. He records grip/muscles strength and functional activity tolerances. Mr Mangipudi opines that, as a result of the accident, the claimant has reduced capacity to undertake self-care, activities of daily living and heavy domestic chores at home.
Under the heading Domestic Care Assistance, Mr Mangipudi states as follows:
“I am of the opinion that Ms Dougherty requires assistance with tasks lifting, carrying over 2 kg weight using right hand and activities involving continuous or repeated sitting, standing, walking, bending, kneeling, squatting, heavy lifting, climbing stairs, manipulation of heavy equipment, machineries and transportation.
The activities she would require assistance with, currently undertaken by the support worker, are vacuuming, washing-drying laundry duties and ironing, mopping floors, cleaning, scrubbing bathrooms floor and toilets, heavy rubbish removal, cleaning glass windows, large shopping, carrying lifting heavy groceries home, meal preparation-cooking, dishwashing. I believe that Ms Dougherty will require 55 minutes per day i.e. 6.41 hours per week (including weekends) assistance with the above domestic chores at home. She will also require 1 hour per month assistance with heavy duties including gardening, car washing and general home repairs and maintenance”.
Mr Mangipudi then describes the claimant’s need for various items of aid and equipment and future services for improving and maintaining her activities of daily living, personal hygiene and home-related tasks. These include occupational therapy and rehabilitation services, pain management/physiotherapy/podiatry services, psychological services and hand therapy. Mr Mangipudi opines that the claimant’s prognosis for being able to perform self-care, household chores, including heavy grocery shopping and long-distance transportation, remains guarded.
Correspondences
(m)     Letter from Allianz dated 31 May 2023 – carer services not accepted.
(n)    Letter to Allianz dated 20 June 2023 – requesting internal review.
(o)    Letter from Allianz dated 27 June 2023 – maintaining decision to decline carer services.
(p)    Letter from Allianz dated 5 July 2023 – Determination of Application.
(q)    Certificate of Determination – Internal Review dated 5 July 2023.
(r)    Letter from Allianz dated 1 August 2023 – liability maintained (with enclosures).
Medical records
(s)    Clinical notes of Dr Diana Cheng, Edgecliff Medical Centre, received
21 February 2023.
(t)    Updated clinical notes of Dr Diana Cheng.
(u)    Report of Dr Diana Cheng, general practitioner, dated 18 August 2022 to the insurer:
“I am writing in response to your letter dated 31 May 2023 declining the request for Carer Services. Neither Ros nor myself requested extra home care services on top of her usual 3 hour a day, 5 days a week. Rosyln has required this home care service since she returned home from hospital in August 2020 after the car accident. Rosyln sustained multiple spine and pelvic fractures as a result of being hit by a car on 20 June 2020. Until now she still suffers from lower back and pelvic pain requiring daily analgesia. Her balance is poor and is unsteady on her feet. Rosyln is also very tired and gets short of breath easily from her bronchiectasis limiting her daily function. Rosyln lives on her own, weighs only 40 kg and is very frail. She would be at high risk of falls and subsequent fractures if she did not have the home care services to help her with essential household duties and grocery shopping. It is essential that Rosyln continues to receive her home care services with the current provider.”
(v)    Certificate of Capacity by Dr Diana Cheng dated 21 June 2022.
(w)   Clinical notes of St Vincent’s Hospital as at 2 February 2021.
(x)    Clinical notes of St Lukes Rehabilitation Hospital.
(y)    Clinical notes of Sydney Pelvic Clinic as at 28 January 2021.
(z)    Clinical notes of Dr Horng Lii Oh as at 5 February 2021.
(aa)    Clinical notes of Bolitho Neurology as at 14 February 2022.
(bb)    Report of Dr Samuel Bolitho dated 1 March 2022 to Dr Diana Cheng:
“MRI of the brachial plexus…. does raise the question as to whether there could be a process such as chronic inflammatory demyelinating polyneuropathy ….. I can see nerve conduction studies… in which there continues to be chronic denervation-reinnervation changes observed in all muscle groups in keeping with a widespread chronic neurogenic process…. It is of concern that Rosyln motor function continues to worsen with worsening wasting and as such I have elected for Rosyln to be admitted to hospital.”
(cc)     Clinical notes of Dr Richard Parkinson, neurosurgeon, as at 27 March 2023 including letter dated 8 March 2023 to Allianz as follows:
“Rosyln has been reviewed by myself and several other specialists since her motor vehicle accident versus pedestrian on 20 June 2020. I agree she has sustained weakness in the left arm due to a possible brachial plexus injury leading to limitation of hand function and wasting in her left hand. She has a long-term injury to her right hand and this will have significant implications for her future independence. There is no relation to any previous dysfunction of this problem. This should absolutely come under the care of CTP. Please contact me if any further questions or clarification is required.”
(dd)    Report dated 30 March 2022 by Dr Antonia Carrol, neurologist and neurophysiologist, to Dr Bolitho:
“Diagnoses:
i.    Right upper limb plexopathy in childhood of unclear aetiology – post infectious versus compressive due to cervical rib – Stable.
ii.    Severe trauma (accident versus pedestrian) June 2020 – multiple fractures – cervical, lumbar spine, pelvis and other traumatic injury.
iii.   Osteoporosis.
iv.   Meniere’s disease with left sided hearing loss.
In summary, Rosyln has had an old event involving the right upper limb which has not changed over many years and is entirely separate to her current symptomology. The new symptomology on the left likely reflects a nerve stretch injury at C5/T1, rather than an inflammatory plexopathy, and this would be most consistent with her neurophysiology. In addition, I feel that Rosyln has altered gait and pelvic dynamics with a possible additional L5/sciatic irritation.”
(ee)    Report dated 14 June 2022 by Dr Michael Solomon, orthopaedic surgeon, to
Dr Cheng.
“Rosyln’s bone scan has shown below. The hip joint looks clear. She does have left sided L5/S1 facet joint uptake and there is little downside in trying a steroid injection into this area. I will send her a referral for this. There is certainly no indication for any orthopaedic surgical intervention.”
(ff)    Clinical notes of Dr Mark Winder as at 9 March 2023.
(gg)    Report dated 6 February 2023 by Dr Mark Winder, neurosurgeon and spine surgeon, to Whom it May Concern:
“Rosyln has been reviewed by myself since her initial injury where she was involved in the motor accident on 20 June 2020. She sustained significant injuries and was admitted under the care of trauma. She has been under the care of Dr Sandy Beveridge and myself.
Upon review, Rosyln had significant injuries with associated fractures and likely avulsion neuropraxia type injury, which left her with significant left symptoms. She was managed conservatively for the fractures, transferred to St Lukes Rehabilitation and underwent further physiotherapy to try and improve her symptoms.
The reality is, Rosyln has sustained significant wasting of her left arm due to likely brachial plexus injury, leading to lower ulnar nerve dysfunction and limitation of hand function. This injury is a direct relation to her motor vehicle accident versus pedestrian. I have intervened and managed to the best of our ability, which has not required surgical intervention. She has been followed up under the care of Dr Bolitho.
It is my definitive view the symptoms Rosyln is currently suffering is a direct causation of the motor vehicle accident she sustained and as such any subsequent intervention should be covered under the care of CTP. I understand this has been reciprocated by associated specialists, and I could not agree more vehemently.
Rosyln’s case is as clear cut as one could be.”
(hh)    Report dated 9 June 2023 by Associate Professor Winder to Allianz:
“I wish to voice my support for Ms Dougherty to continue to receive home care services.
I understand that these services have been deemed not reasonable or necessary and are to be tapered over the next couple of months. Considering the long-term effects she has suffered following the 4-wheel drive verse pedestrian accident in 2020, I feel it would be decidedly unreasonable to discontinue these services.
Ms Dougherty sustained significant injuries as a result of the accident and this has left her with, amongst other things, neuropathic pain, limited left arm/hand function, and poor balance and mobility. She is unlikely to ever recover to pre-accident levels of mobility and fitness.
In summary, I would consider the home care services essential for her ongoing wellbeing and, once again, I support their continued utilisation.”
(ii)    Report dated 22 March 2023 by Dr Emily Stone, thoracic physician:
“Ms Dougherty has bronchiectasis following trauma and requires ongoing respiratory review because of the risk of recurrent infection.”
(jj)    Report dated 26 April 2023 by Dr Emily Stone to Whom it May Concern:
“Ms Dougherty was referred to me for review in August 2021 for evaluation of respiratory issues that had developed over the previous year. She reported a likely lower respiratory tract infection at the end of 2020, following a severe pedestrian accident in mid-2020.
I note the reports from my colleagues Dr Bolitho and Dr Carrol detailing extensive neurological changes and injuries secondary to the accident. From my evaluation, Ms Dougherty had no history of respiratory issues prior to the accident. A combination of factors including possible aspiration at the time of the accident and deconditioning may have contributed to her recurrent lower respiratory tract infections since the accident.”
(kk)     Clinical notes of Dr Michael Parle, psychologist, as at 5 May 2021.
The claimant made no submissions in relation to the relevance of any of the clinical notes cited above.
(ll)    The claimant relies upon an Activities of Daily Living Assessment Report dated
9 July 2023 which was prepared by Melinda Tan-Stephen, rehabilitation consultant of Greenlight, for the insurer. The report was not served in the insurer’s case. Under the heading Current Capacity, the occupational therapist reported as follows:
“Ms Dougherty advised that she was retired at the time of the accident, though would play tennis competitively twice weekly prior to the accident and walked daily for exercise. Ms Dougherty advised that she also exercised on a stationary bike and rowing machine prior to the accident.
Ms Dougherty advised that she has resumed to daily walks accompanied by her carer due to her concerns regarding her balance. Ms Dougherty advised she generally will walk between one to two hours depending on how she is feeling on the day. Ms Dougherty advised that in her daily walks, she works to maintain her balance by walking at a moderate to fast pace. Ms Dougherty advised that she exercises on her stationary exercise bike most days for 30 minutes at a low resistance level. She no longer exercises on the rowing machine. Ms Dougherty advised she is unable to play tennis since the accident.
Ms Dougherty denied any pre-existing medical conditions or injuries prior to the accident. The occupational therapist noted that Ms Dougherty had a cleaner who attended her home fortnightly prior to the accident to complete vacuuming, mopping and bathroom cleaning.
It was noted that the claimant was stressed by the insurer’s proposed withdrawal of home care services and also by its allocation of 15% contributory negligence on Ms Dougherty’s part.
The occupational therapist recommended various items of funding, for equipment and services, as itemised in the report. Those recommendations were to address barriers identified by the occupational therapist as described. It was noted that the claimant had no pre-existing physical or psychological conditions. This report was submitted to the insurer after the date of the decision to terminate services.”

The insurer relied upon the following material which the Review Panel has considered:
R1     Insurer’s submissions in reply to the claimant’s application for review of certificate of Assessor Cameron (previously summarised).
R2     Certificate of Assessor Cameron dated 15 September 2023 (previously summarised).
R3     Insurer’s submissions in reply to claimant’s application for assessment of a treatment dispute (care) dated 21 August 2023:
“The claimant’s accident, her initial injuries and her course of treatment are set out thoroughly in the Internal Review (R2). There is no doubt she sustained severe physical injuries. Accordingly, the insurer supported domestic care for more than 3 years after the accident. This dispute only relates to domestic care after 31 May 2023, where a plan was enacted by the insurer to taper off the claimant’s care services over 10 weeks through to 25 August 2023.
The insurer’s position is that the claimant’s care needs have reached a baseline which would have existed whether or not the accident occurred, and that her current need for care relates to the natural progression of her age, and an underlying and/or unrelated condition of chronic inflammatory demyelinating polyneuropathy.”
The insurer then summarises some of the medical evidence. There is reference to Dr Bolitho and Dr Carrol “who agreed that the right sided upper limb symptoms related to the long-standing post-polio like illness, but the left sided symptoms were due to a nerve stretch injury at C5/T11 as a result of the accident”.
The insurer submits that, other than Dr Carrol, “The reports in favour of the care being continued do not grapple with the causation issues – they merely do little more than say that they support the claimant’s wishes that the care be continued.”
The insurer further submits that, in addition to the causation issues, there is also the question of the level of care which is reasonable and necessary. The insurer observes that the claimant’s carer contacted the insurer on 15 March 2023 to confirm that the claimant has improved in her presentation and agree to tapering of services.
Under the heading SUMMARY, the insurer submits as follows:
“In our submission you would accept the opinion of the treatment neurologist simply cannot say, on the balance of probabilities, that there is a connection. On that basis, we say that the claimant has not satisfied the onus of proof that the current treatment (from May 2023) is related to the injuries sustained in the accident, and accordingly, the claimant would not be entitled to ongoing domestic care as a result of the accident. The costs of in-home care ought to shift to the aged care system provided by the Commonwealth, rather than the NSW Motor Accidents Scheme.
R4. ADL report dated 8 April 2021 by Lee Abel, occupational therapist of Recovre to the insurer.
Under the heading Assessment Outcome and Strategy, Ms Abel says as follows:
(a)    Recovre has liaised with Ms Dougherty’s care provider and her physiotherapists. The care agency have reported that Ms Dougherty is not receiving any assistance with personal care tasks and only receiving assistance with cleaning, vacuuming and ironing. The care agency is also accompanying Ms Dougherty on a walk around her neighbourhood.
(b)    In addition to the above, Ms Dougherty received external domestic assistance fortnightly, which she was receiving prior to the accident.
(c)    Recovre has liaised with Ms Dougherty’s treating physiotherapists who have stated that her confidence with walking outdoors on uneven surfaces and during rainy condition, (whilst holding an umbrella) had improved significantly and that she does not need someone to accompany her.
(d)    Considering the above information, Recovre recommends a gradual decrease in the care Ms Dougherty is currently receiving as her independence to mobilise and complete her ADL tasks have improved to the point where she is reported not to need any assistance.
R6.    Insurer’s reply dated 8 July 2022 to claimant’s application for a care dispute.
These submissions relate to the claimant’s proposed admission to St Vincent’s Private Hospital which was the subject of Medical Assessor Cameron’s earlier certificate. These submissions are not relevant for present purposes.

EXAMINATION REPORT

The report of Medical Assessor Sophia Lahz is as follows:
“Medical Assessment of Mrs Roslyn Dougherty 10/12/24 PIC Suites regarding Treatment/Care dispute – Ongoing Domestic assistance/Care after 25/8/23 due to injuries of the pelvis, neck, lower back, skull fracture, lungs and vertigo
Mrs Dougherty attended the appointment punctually having travelled from her Edgecliff apartment by taxi. Whilst she can drive, she elected to come by taxi due to the parking problems in the city.
She is aged 83 and right-handed. She lives alone in a ground floor two bedroom/two bathroom apartment at Edgecliff where she has lived for nearly 30 years. She tells me that she was widowed over 30 years ago, and has three adult children, two of whom live in the USA and one in Sydney. There are also several grandchildren.
She reported good general health before the motor accident on 20/6/20, and further that she had been very active, attending the gym 4-5 times per week (cardio/weights), seeing friends regularly and taking daily walks. She was capable of doing all chores although for 37 years, she explained that she elected to have a paid cleaner attend 3 hours fortnightly to do the bathrooms, floors and ironing. She was able to clean floors in between the cleaner’s visits. She could mop/vacuum, cook and do her grocery shopping independently. She said too that she had been capable of playing tennis until mid-late 70’s when other people started to withdraw for various reasons.
I asked her about the reported fall in Bali during 2019. She said that she walked independently (no aids) and had good balance before the 2020 motor accident. However, in Bali, she had been walking on a footpath where there had been a large hole concealed by mesh. Her sandal caught on the mesh whilst she had been walking with young grandchildren, causing her to “face plant” to the ground. She was able to arise to her feet although her face was covered in blood. A doctor later visited her at the resort where she was staying and she was diagnosed with a single rib fracture. She regards herself as quite lucky.
I asked her about the childhood history of acute illness culminating in the chronic right upper limb muscle wasting. She told me that she contracted Dengue Fever, a mosquito borne illness when she was aged 10, causing significant delirium (confusional state). On emerging from the acute delirium, she was affected by “burning pain” involving the right arm, which she said was initially misdiagnosed as tennis elbow and a steroid injection given which did not help.
Over the years, the right upper limb became wasted although she could continue using it despite the weakness, wasting and neuropathic pain. She still used the right arm more than the left and been able to complete bimanual tasks (albeit with increased difficulty compared with peers).
For several years (during her teens), she walked around cradling the right upper limb due to the neuropathic pain. She said too that her mother used to wrap the right arm in a type of cotton wool and that her parents always believed that the right upper limb was painful, whereas the doctors did not. She learned that the right arm felt best if it were kept warm.
She commenced studies at the Teachers’ College at Herston, at the same time finding part time administrative work at the medical school (late teens). One of the doctors noticed the difficulties she was having with the right arm, investigating further by pressing firmly on the right side of the neck root, causing a shooting pain to radiate down the right arm. She also said that it had been suggested that she undergo surgery on either the head or else the neck to investigate the cause of the problem with the right arm (no investigations being possible in those days). Subsequently (after the doctor examined her neck), there was a diagnosis made of cervical (extra) rib which was later surgically removed, fortunately with resolution of the right upper limb neuropathic pain.
The right arm remained weak and wasted though for the most part, functional over the years and she continued being able to perform bimanual tasks, admittedly with a little more help with the left arm, compared with peers. She described completing a series of piano examinations inclusive of the ‘Letters’ although she quickly gave up playing the piano because of the difficulty holding the right upper limb in the abducted posture required for playing the piano.
Following cervical rib removal, she described being able to play tennis, write and type using the right hand. She said too that she had been ‘healthy and independent’ before the motor accident and able to drive long distances e.g. to Melbourne. As noted, she had also been independent with personal care and domestic chores and had also travelled regularly overseas.
With respect to work history, she spent three years with Qantas working in cabin crew. She described herself as a hard worker who enjoyed her job. Subsequently (by late 20’s) she gravitated to the corporate world and by age 29 she was working in an executive role for a promotions company.
She married and then had three children. They relocated to Melbourne for her husband’s work and she found similar corporate work there. She also spent a few years out of the workforce.
Once the children were older, she and her husband had returned to Sydney and she then spent 20 years working at a medical practice in Double Bay as a practice manager which she also enjoyed due to liking contact with people. She retired permanently at age 70.
Unfortunately, at age 50, her husband died and she has spent some 30 years on her own.
She has never smoked and has never consumed alcohol heavily.
She reported that the right upper limb condition remained stable until the time of the subject motor accident 2020.
I asked her as well about the Meniere’s Disease which was diagnosed during her 50’s, treated with low salt diet and Stemetil. She said the condition was troublesome for about 10 years until her mid to late 60’s and she recalled a hospital admission. However, she pointed out that the disease had never stopped her from working. However, eventually disease ‘burnt itself out’ and prior to the 2020 motor accident, she was no longer experiencing any vertigo/dizziness.
I asked her about the subject motor accident. She said she had been aged 78 at the time, and been out on a walk near her home in Edgecliff and in Ocean Street, having just stepped off the curb at Cross Street. She was struck on the left side (she pointed to the hip region) at speed by a large 4WD and forced to the ground (she fully recollects these events). She was told that she bounced off the car bonnet and roof and then slid across the road with her right arm behind her. On coming to rest, she remembers that she could not move and unable to feel her legs. She also recalls seeing people on the footpath and asking if someone had called paramedics.
Emergency services arrived and her clothing was cut off, which she recalls was a very traumatic experience. She was conveyed to nearby SVH, en route hearing discussions about ‘blood clots and a lot of internal bleeding’.
She sustained multiple fractures of the pelvis/pelvic ring and neck. The pelvic fractures had also pierced her bladder, which could fortunately be salvaged. She understands that there had been a distinct possibility of losing her bladder entirely due to the trauma. There was uncontrolled bleeding which had to been controlled- she underwent embolization of a pelvic artery that was bleeding out. She also received large amounts of intravenous fluids and blood products. In addition, a large neck brace reaching down to the mid chest was applied in hospital and she had to wear this for many weeks.
She spent around 10 days in ICU and then awoke to find there was neuropathic pain (with which she was already very familiar due to the right arm history) but now in the opposite i.e. left upper limb. She could not believe it that the same symptoms she had in the right arm which had been cured by the rib removal were now in the left arm.
A pelvic ex fix was applied to her ‘shattered pelvis’ a few weeks later remaining in situ for about two months before it was duly removed. She required daily dressings to pin sites and could only mobilise short distances on a FASF whilst remaining non weight bearing on the left leg for approximately 2-3 months. Overall, she spent a month at SVH and then a further month at St Lukes Hospital for rehabilitation. She said she could do very little physical rehabilitation as such whilst at St Lukes due to the presence of the ex fix and prolonged minimal/non weight bearing status on the left leg. She explained that she spent much time down one end of the gym, not bothering anyone whilst using an arm crank for up to 2 hours per day to build up the upper limbs. (The left arm also remained affected by the neuropathic pain which she had first noticed ten days post accident. She said that the pelvic ex fix was only removed the day she was discharged home. She was also still in the neck brace when discharged and had to wear this as well for a good 6-8 weeks due to the neck fractures.
After discharge, she received many hours of daily daytime care to help her with personal care, meal preparation, shopping and chores, none of which she could do due to reliance on walking aids whilst remaining minimally weight bearing on the left leg. She eventually progressed from a large walking frame to a smaller walking frame. She said that she received 8-10 hours per day of care for at least the first 12 months post-accident. She also received physiotherapy home visits for several months.
Eventually, the home-based physiotherapy was insufficient so she started attending the pelvic clinic where she could use lower limb exercise equipment/ “machinery” and an outpatient physiotherapist arranged through St Lukes. She said that she attended the pelvic clinic for around 12 months and St Lukes for about 18 months whilst working very hard on her physical rehabilitation. She later received a home exercise programme which she still does.
About six months after the motor accident, she took her first few steps without a walking frame and over the next 12 months, she gradually regained independent mobility/gait without reliance on a walking frame. However, she never fully regained normal balance. Also, she lost considerable weight after the accident. Pre injury, she reported to have been just 42 kg (though she has never dieted). Weight plummeted to 35 kg although she has put on a few kilograms reaching 39 kg. She can’t put on weight despite taking three regular meals per day, comprising fish, some chicken, salads and vegetables. She is not a fan of red meat.
Ongoing, she has suffered from considerable activity-related pain affecting the neck, left upper limb (neuropathic symptoms), pelvis/left hip and lower back/sacral region with symptom spread down the left lower limb (to be discussed further below). She also reports substantial pain-related sleep disturbance.
She was seeing multiple specialists although her medical care has more recently been assigned to Dr Richard Parkinson at SVH and she has been attending the SVH Clinic ever since the motor accident. There have been various diagnoses suggested for the left upper limb pain e.g. brachial plexus stretch, inflammatory polyneuropathy and nerve injury from neck fractures. It was suggested that she have specific therapeutic infusion for the worsening weakness and wasting of the left upper limb although she said that a specialist she saw (name forgotten), said the treatment was ‘too expensive’ about which she felt angry and ‘unworthy of treatment’. Dr Parkinson prescribed Lyrica although this ‘wipes her out’ and she can only tolerate a small dose (25 mg) which she takes of a morning. I note too that the records indicate she has undergone MRI of the brachial plexus showing some thickening/inflammation and that nerve conduction studies have shown chronic bilateral upper limb denervation.
After the accident (timeframe uncertain) she also developed action tremors in both arms making it now difficult to write with the right hand. She feared she could now have Parkinson’s Disease although the treating specialists have reassured her that she does not.
She expressed dissatisfaction that, the Insurer (she said) will not permit her to see any specialist or have any treatment for the left upper limb problems on the basis that these have nothing to do with the accident. She said ‘the left arm problems came from the accident and have nothing to do with the right arm problems which occurred pre-2020’).
Mrs Dougherty’s current medications are Lyrica 25 mg mane, Panadol Osteo 2 tablets at night and Diazepam 2 mg tds (she said for PTSD).
In 2022, she consulted Dr Solomon about left hip/pelvic girdle pain and told that although there is some arthritis at the hip, she does not yet need a THR though this may be necessary in the future.
Physiotherapy and exercise physiology interventions ceased in June 2023. She had also been receiving psychological interventions after the motor accident.
She is still attending the SVH clinic and recently been receiving various injections to the neck (once) and pelvis/left hip/buttock (twice). She is due for further neck injections early next year. To date the abovementioned treatment has not made much difference.
Dr Parkinson has mentioned that there may be a ‘small operation’ she could have on her neck although she does not know any details. She prefers the option of less invasive treatment, given her age.
She did see Dr Carroll (neurologist) and may well seek review for consideration of medication to help with the tremors.
Since the 2020 motor accident, she has also been diagnosed with post pneumonia (infectious) bronchiectasis for which she is also under the care of a respiratory physician.
From about 12 months post-accident until mid 2023, she received three hours per day paid care from the insurance company 5 days per week for community walking, shopping and chores (mostly ironing, whatever there was time for). The care then ceased and it was suggested that she arrange grocery delivery. However, she said this had been difficult because she was not always home when they arrived, with items being left at the front door (which she would struggle to lift and unpack).
She tries to keep active as possible. She uses her computer, does crosswords, drinks a large daily Chai tea, watches TV, and takes a daily walk (level ground and slopes). She pushes herself to get out and about although she has withdrawn socially somewhat. She goes walking with a friend on Saturdays though by herself at other times. With shopping, if alone, she can only obtain a few small items due to difficulties with lifting and carrying. As noted, she currently relies on a friend to help with shopping who is about to relocate out of area. Before this, she had arranged with Woolworths a delivery by 4pm to home/kitchen bench although this arrangement did not last. On a Friday, she will usually still have a lunch with a group of friends.
She has felt especially depressed since early 2024 and more likely to pull out of social activities.
Current Symptoms
She complains of neck soreness and stiffness compounded by having to sleep on her back, with attendant poor neck support. She is considering whether to start wearing a collar at night. She can’t sleep on the right side due to pelvic tilting/painful deformity and if she sleeps on the left side, the neck becomes unduly uncomfortable.
She complains of constant neuropathic pain all the way down the left upper limb worst over the medial arm and forearm though affecting all fingers. There was paraesthesia especially of the inner forearm/arm (affecting all fingers too) although she reported a subjective global alteration in sensation including the dorsal forearm as well. The pain has burning characteristics and the left upper limb has progressively wasted since the 2020 motor accident. She still tries to keep the left upper limb warm to reduce overall symptoms. The left upper limb is also generally weak.
There is substantial pain over the sacral region where she can feel the ‘pins’ with any leaning forward. Standing tolerance is also poor due to sacral pain 5-10 minutes. Low back pain spreads down the left leg into the foot although the left lower limb pain is less consistent than the constant nag she feels in the left upper limb. The left leg can lock up if e.g. she dons a sock or else a shoe. She feels the left lower limb pain is getting worse. She reported walking tolerance of up to one hours (whilst not carrying anything).
She would have difficulty getting down and off the floor again and would only go down on the floor if there were something adjacent she could grab.
She struggles due to loss of bilateral manual dexterity/fine motor skills with buttons, zips, earrings etc.
Bladder function is satisfactory. There is very occasional incontinence although she does not need to wear pads.
She described her balance as ‘not great’ and she has taken great care not to have any falls. She did say that she was recently at the park when a dog hit her on the shin, almost knocking her over. It would not take much (given her small frame) even though she is a dog lover. Whilst out in the community in the vicinity of the accident, she said she often feels as though she is waiting for an impact. She feels anxious that the local area is so busy.
She denied any vertigo as such i.e. no spinning sensations. She does not experience any symptoms resembling those she had years ago with the Meniere’s disease. However, she said that on arising from bed to a seated position, she sometimes feels briefly imbalanced and has to sit there for a few seconds until the feeling passes.
For the last 12-16 months, a neighbour has been helping her take out the rubbish. Her paid fortnightly cleaner has continued to clean the floors/bathrooms, vacuum, wash large items (sheets) and hang out the heavy laundry (towels on the airer and sheets in the shower recess) and change the bed. Once the large items are ¾ dry, she can only just place them in the wall mounted dryer above the washing machine. A friend who is about to move out of the area has been walking to the supermarket with her to assist her with grocery shopping. She cooks the kind of meals that don’t require much standing e.g. fish/vegetables or else she consumes frequent takeaway. She also has chicken, chai latte, muesli cookies, salads and chocolate. She has various bottle/can openers and she still uses the right hand to cut hard foods with difficulty. She reported to be able to iron for just short periods due to poor standing tolerance.
She would like paid help 4-5 hours twice weekly for mostly shopping, community walking to shops and heavy household chores such as ironing. She told me that she is unable to make/change a bed, iron, cook fast, vacuum nor clean a bathroom due to markedly decreased standing tolerance (low back/pelvic pain). She also described herself as a fussy housekeeper, noting that cupboard cleaning, cleaning at heights e.g. bookshelves, general spring cleaning activities are not being completed at her home.
She feels exhausted by the adversarial processes necessary to obtain paid assistance and feels that every time she sees someone there is a ‘negative’ outcome. She was distressed by the outcome of Professor Cameron’s brief assessment and said that such things can ‘get into one’s head, being hard to move away from’.
She agrees with the contents of Dr Winder’s letter from 2023 as to being an accurate summary of her condition.
Examination
Mrs Dougherty was a very detailed historian (the assessment took 2 hours and 15 minutes).
I noted that she has a very small build with height 156.5 cm and weight 38.6 kg. Overall, her appearance was characterised by frailty and debility.
There was marked spinal/pelvic deformity with thoracic scoliosis convex toward the left and marked pelvic asymmetry L<R. There was flattening of the lumbar lordosis with mild neck protraction.
There was generalised tenderness at the cervical spine without muscle guarding or else spasm.
Neck movements were reduced by ½ in all planes although she was reluctant to extend her neck beyond neutral (expressed some apprehension) in case of painful flare up either now or later.
There was a full range of shoulder motion in all directions bilaterally. Elbows, wrists and hands also displayed satisfactory movement.
There was wasting of both arms L>R with 19 cm girth (left) compared with 20.5 cm (right) 10 cm above the elbow crease and for the forearms 5 cm below the elbow crease 18 cm right and 17 cm left. There was gross wasting of the right hand involving thenar and hypothenar and all the small muscles and lesser but definite wasting of the left hand, with reduced bimanual dexterity. There were flexion deformities of the right DIP joints.
Upper limb reflexes were brisk and symmetrical. Hoffman’s and finger jerks were bilaterally negative. Upper limb tension tests were negative bilaterally.
There was reported global sensory alteration of the left upper limb, worse over the medial arm and medial forearm whilst affecting all fingers. Sensation over the right arm was also generally altered (long standing).
Thumb position sense was preserved bilaterally. She could slowly oppose the right thumb to each finger and could do this slowly but definitely better on the left compared with the right.
There was mild weakness of the upper limbs, affecting all muscle groups worse on the left.
Finger nose coordination and rapid alternating movements were satisfactory for observed (poor) muscle bulk.
Gait was very slow and flexed.
She could balance repetitively on tiptoes x3 with light examiner support. She could also balance briefly on her heels although she required more support from the examiner.
I observed her bend over to secure her shoes. She declined to extend her spine in case of pain flare up. Lateral flexion and twisting of the lower back were ½ normal range to either side.
There was no localised tenderness over the lumbar spine, and there was no guarding or else spasm.
She could sit on the side of the couch with each leg extended. Lower limb neural tension tests were thus negative. Knee, ankle and hamstring jerks were present and symmetrical. Plantar responses were flexor. Lower limb power was generally reduced grade 4/5. There was global sensory change reported in the left lower limb more marked over the lateral thigh and calf. Right lower limb sensation was normal.
She could slowly perform a heel shin (coordination test). Great toe proprioception was preserved bilaterally. Romberg’s test was negative. There was no measurable wasting of thighs 30 cm 10 cm above the superior patellar border, nor calves at maximal mid girth 27 cm.
Right and left hip movements were pain free and of satisfactory range although there was mild reduction of left hip IR. Knees and ankles also moved satisfactorily.
On arising to a seated position, she complained briefly of dizziness and had to sit for a few seconds until this had passed.
Subsequently, she could dress independently albeit slowly.
Conclusions
Mrs Dougherty presented in a straightforward manner, and as noted a detailed historian.
In the subject June 2020 motor accident (at age 78), she sustained extremely severe, life threatening injuries incorporating pelvic disruption (pubic rami/sacral fractures) requiring prolonged application of external fixation/NWB, lumbar fractures (transverse process fractures), and extensive blood loss requiring fluid resuscitation/blood products/embolization of damaged artery to stem blood loss and ruptured bladder requiring surgical intervention to salvage the bladder.
Hospital records clearly indicate that she developed the left upper limb neuropathic pain within just a few weeks of the subject accident. She had no left arm symptoms before the motor accident, and there can be no doubt that the left arm symptoms have developed as a result of the trauma from the motor accident and unrelated to the long-standing issues in the right upper limb which have continued unchanged since the 2020 motor accident.
There was a lengthy hospital admission (2 months) after the subject accident.
Given the nature and severity of the injuries inclusive of pelvic disruption and neck fractures (not to mention her older age), it is not surprising that she is experiencing ongoing neck pain, left upper limb neuropathic pain and lumbosacral pain with left lower limb radiation. There was a left sacral alar fracture with likely nerve irritation (nerve roots pass through sacral foramina). Pelvic disruption injury even post external fixation can be anticipated to give rise to ongoing mechanical pelvic/lower back pain.
There is nothing in the immediate pre accident records to suggest that she was physically incapacitated before the 2020 motor accident, notwithstanding there was a history of burnt out Meniere’s disease. She gives a history of being independent and capable of all domestic and personal care activities although as noted, she chose to have a cleaner for the heavy tasks.
Since the accident, she has lost weight, remains physically deconditioned and suffers from significant pain in the neck, lower back/pelvis and left upper limb all of which symptoms are causally related to the subject motor accident. Body habitus is frail and there is sarcopenia (poor muscle bulk) with chronic pelvic asymmetry secondary to the motor accident injuries. The ‘imbalance’ is likely due to persistently poor muscle bulk/strength despite her considerable efforts with physical rehabilitation.
She has ongoing difficulties (weakness/wasting) with the right upper limb which predated the motor accident, now compounded by tremor (which I am unable to causally relate to the motor accident.)
The idea that three years after incurring such injuries that a person of this age could completely recover to resume (close to) pre-injury function is simply medically not feasible. The injuries from the subject accident were very serious and will exert lifelong impact on her physical capabilities for chores, mobility, shopping and meal preparation.
I do not understand the reasons for Professor Cameron’s conclusion that her current limitations are due to conditions which predated the motor accident. There is no evidence that this is the case, rather the evidence is that the very serious injuries have served to permanently compromise her abilities for domestic tasks due to mechanical lumbosacral backache causing reduced standing tolerance, reduced tolerance for lifting and carrying (e.g. when shopping) and chronic pain-related sleep disturbance.
Mrs Dougherty has done well to resume regular community walking, short stints of driving and light chores/small meal preparation although it is not reasonable that she be expected to complete heavy tasks such as bed making/changes, heavy laundry, large item grocery shopping, vacuuming, mopping and complex meal preparation. The limitations for the latter are due to neck pain, left upper limb pain, low back/pelvic pain with left sciatica, reduced balance and worse muscle loss all of which are due to the subject motor accident injuries.
Whilst the effects of ageing would compound the effects of the injuries, the fact is that she was independent before the motor accident, which has served to effectively accelerate the effects of aging.
I have determined that domestic care post 25/8/23 is related to and reasonably necessary due to the motor accident injuries although an occupational therapist should determine the reasonable and necessary weekly care hours.”

DOES THE PROPOSED CARE RELATE TO THE INJURY RESULTING FROM THE MOTOR ACCIDENT?

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of permanent impairment resulting from injury under the worker’s compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[6] These principles are well-settled and equally apply to the causal relationship of treatment under the Act by reasons of the same statutory language.
[6] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Philips.[7] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear that s 58(1) of the Motor Accidents Compensation Act1999. Those words are almost identical to the wording in Schedule 2 of the Act.

REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
[7] [2018] NSWSC 1710 at (29).

The claimant is required to establish that the care is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the care is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the care is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[8] Grove J stated:[9]
“22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ as relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ – (shorter Oxford English Dictionary, 3^rd Edition) 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 may be ‘reasonably necessary’, there is these statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[8] [2003] NSWCA 52.
[9] Clampett at (22) – (23), Meagher and Santow JJA agreeing.
Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[10]
[10] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).
Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[11] They include:
(a)    the appropriateness of particular treatments;
(b)    the availability of alternative treatments;
(c)    the costs 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.
[11] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88).
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.

FINDINGS

The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[12] The Review Panel adopts the examination findings and reasons of Medical Assessor Lahz with which Medical Assessor Gibson concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[13] The Medical Assessors have explained why they have come to a different conclusion to that of Medical Assessor Cameron.
[12] Section 7.26(6) of the Act.
[13] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel rejects the insurer’s submissions that the claimant bears the onus of proof to establish her need for ongoing care. It is the insurer’s case that the claimant’s admitted need for care, after that time, is not causally related to the accident, but rather due to the normal aging process and the claimant’s pre-existing conditions. The insurer has provided little independent expert evidence in support of that contention. No report from a qualified medical specialist has been served in the insurer’s case. The evidence of Lee Abel largely is based upon hearsay evidence from third parties who have provided no statements. The insurer’s case mainly consists of submissions without a proper evidentiary basis.
Based upon all of the evidence, the Review Panel is satisfied that the claimant’s main problems arise from the accident-related injuries to her neck, lower back and pelvis. Considerable difficulty also arises from the condition of the claimant’s left upper limb which was not an injury referred for assessment. Nevertheless, the Review Panel is satisfied that the condition of the claimant’s left upper limb is attributable to the motor accident. The Review Panel accepts the opinion of Dr Mark Winder to that effect. As previously noted, Medical Assessor Cameron was satisfied that the claimant suffered a brachial plexus injury in the accident.
The Review Panel accepts Dr Stone’s opinion that aspiration at the time of the accident may have contributed to the claimant’s recurrent lower respiratory tract infections since the accident.
The Review Panel is satisfied that, as a matter of medical determination and as a matter of factual non-medical determination, that the claimant has a need for ongoing care services after 25 August 2023, in relation to all of the injuries referred for assessment. As previously stated, that is particularly so in relation to the pelvis, cervical spine and lumbar spine.
The Review Panel also accepts that the provision of ongoing carer services after
25 August 2023 is reasonable and necessary, in the circumstances, arising from all of the injuries referred for assessment, particularly the pelvis, cervical spine and lumbar spine.
The Review Panel is of the opinion that the provision of ongoing care services from
25 August 2023 will improve the recovery of the injured person, relating to all of the injuries referred for assessment.
In reaching their medical determination, the Medical Assessors have had regard to standard medical practice and exercised the entire gamut of their clinical experience and judgment.

CONCLUSION

For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Ian Cameron on 1 April 2024 should be revoked. The new certificate appears at the commencement of these reasons.

[2025] NSWPICMP 40

20 January 2025