Faridy v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Faridy v Allianz Australia Insurance Limited [2023] NSWPICMP 670
CLAIMANT:	Durdana Faridy
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Dawn Piebenga
MEDICAL ASSESSOR:	Geoffrey Lauren Alach
DATE OF DECISION:	12 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Castle-Burton; The claimant sustained injury to the neck and right shoulder on 8 June 2018; MA Home certified fortnightly cleaning services related to injury caused by accident and referred dispute for assessment by an occupational therapist; MA Castle-Burton certified fortnightly domestic assistance from 18 July 2020 to 20 December 2021 and from 21 December 2021 and ongoing was not reasonable and necessary in the circumstances; Held – claimant has range of movement restrictions of right shoulder; no evidence of any significant change in condition; strenuous activities and those above shoulder height likely to aggravate right shoulder pain and possibly neck; certificate MA Castle-Burton revoked; domestic assistance for three hours per fortnight from 18 July 2020 to 20 December 2020 and from 21 December 2021 and ongoing for the future reasonable and necessary in the circumstances.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Anna Castle-Burton dated 28 April 2023 and certifies the following treatment and care is reasonable and necessary in the circumstances: · domestic assistance for three hours per fortnight from 18 July 2020 to 20 December 2021, and · domestic assistance for three hours per fortnight from 21 December 2021 and ongoing for the future.

STATEMENT OF REASONS

INTRODUCTION

On 8 June 2018 the claimant was driving her Toyota vehicle when the insured vehicle came from a side street on the left and collided with the left front corner of her vehicle causing it to spin 180º and collide with a Centrelink building. The airbags deployed, the claimant panicked and extricated herself from the vehicle. She was transported by ambulance to Nepean Hospital complaining of pain and swelling in the right upper limb.
At the date of the accident Ms Faridy was 51 years of age. She is now 56 years of age.
On 4 July 2018 Ms Faridy lodged an Application for personal injury benefits seeking statutory payments in respect of injury sustained in the accident.[1]
[1] Insurer’s initial bundle p 80.
Allianz Australia insurance Limited (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Faridy under the Motor Accident Injuries Act 2017 (the MAI Act).
On 28 January 2022 the insurer issued a Certificate of Determination Internal Review affirming an earlier decision to decline liability for weekly hair washing services and fortnightly cleaning.[2] The insurer did not consider the left shoulder injury causally related to the accident, based on the IME report of Professor Cumming, dated 22 November 2021 and the opinion of Dr Robin Mitchell who concluded Ms Faridy did not require any future treatment, other than simple analgesia, as required.
[2] Insurer’s initial bundle p 2,167.
On 6 September 2021 the claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment and care dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or related to the injury caused by the motor accident for the purposes of section 3.24”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
This dispute was referred to Medical Assessor Alan Home who issued a certificate dated
22 March 2023.

MATERIAL BEFORE THE REVIEW PANEL

The Panel issued a Direction to the parties on 2 August 2023 directing the insurer by close of business 23 August 2023 to upload to the portal an indexed and paginated bundle of all documents relevant to the review. The Panel noted the insurer’s bundle will be made available to the claimant who will be given an opportunity to provide any further documents sought to be relied upon which were not contained in the insurer’s bundle.
On 18 August 2023 the insurer uploaded to the portal a bundle of documents paginated from page 1 to 2,391 (Insurer’s initial bundle).
On 25 August 2023 the Panel directed the following message be sent to the parties:
“The Panel notes the bundle of documents uploaded by the insurer comprise 2391 pages.
The Panel refers to the decision of the High Court in Gamestar Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623 where it was observed in the absence of submissions referring to specific documents the Court does not intend to go searching for references within documents where the submissions do not specifically address the materials. The Panel also notes the comments of Bellew J in Bevan v Bingham [2023] NSWSC 19 concerning the obligation of legal practitioners to place only the necessary evidence before the decision maker.
The Panel notes the dispute referred to Medical Assessor Anna Castle-Burton, the subject of this review was whether fortnightly cleaning services are reasonable and necessary in the circumstances. Where the insurer paid for fortnightly cleaning services until 20 December 2021 it seems the dispute only relates to past fortnightly cleaning services from 21 December 2021 and future fortnightly cleaning services.
Having undertaken a cursory review of the 2391 pages furnished by the insurer the Panel considers many of the documents contained in the insurer’s bundle are not relevant to the dispute to be considered by the Panel.
Accordingly, the Panel directs the insurer, on or before 8 September 2023 to either file an indexed and paginated bundle limited to the documents relevant to the review or alternatively to direct the Panel to those documents in the bundle already uploaded to the portal which the insurer submits are relevant.”
On 7 September 2017 the insurer uploaded to the portal an amended bundle of documents paginated from pages 1 to 79 (Insurer’s amended bundle).
In a message uploaded to the portal on 29 September 2023 the claimant asked if the following documents included in the insurer’s initial bundle could be considered by the Panel:
·        report of Nicky Robinson physiotherapist dated 27 January 2021 (page 1,499 of the insurer’s initial bundle);
·        report of Melissa Foley, occupational therapist of Pinacle Rehab dated 18 May 2021 (pages 1,902 of the insurer’s initial bundle);
·        report of Dr James Bodel dated 31 May 2021 (page 1,894 of the insurer’s initial bundle);
·        report of Dr Koh, orthopaedic surgeon dated 22 July 2021 (page 1,919 of the insurer’s initial bundle);
·        report of Dr Mohammad Rabbi, general practitioner dated 31 August 2022 (page 2,241 of the insurer’s initial bundle), and
·        Certificate of Medical Assessor Alan Home dated 29 September 2022 (page 2,356 of the insurer’s initial bundle) and specifically his recommendations on page 2,359.
In addition, Ms Faridy provided copies of the following reports on which she sought to rely:
· report of Dr Rabbi dated 2 February 2021, and
· report of Dr Rabbi dated 30 July 2021.

TREATMENT AND CARE – STATUTORY PROVISIONS

Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)   The reasonable cost of treatment and care,
(b)   Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)   If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2)   No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.26(1) of the MAI Act refers to statutory benefits for loss of capacity to provide gratuitous domestic services. The relevant provisions are as follows:
“(1) An injured person is entitled to statutory benefits under this Division for the
reasonable expenses incurred after the motor accident in employing a person to
provide domestic services to the claimant's dependants, but only if--
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in this section--the claimant provided the services to those dependants before the motor accident, and
(b) the claimant's dependants were not (or will not be) capable of performing the
services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the claimant's injury,
the claimant would have provided the services to the claimant's dependants for at
least 6 hours per week and for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.”
Section 3.26(4) provides:
“(4) The provision of domestic services to an injured person's dependants as provided by this section constitutes the provision of treatment and care for the injured person for the purposes of this Division.”

CERTIFICATE OF MEDICAL ASSESSOR ALAN HOME

Medical Assessor Alan Home assessed the claimant on 26 September 2022 and issued a certificate dated 29 September 2022 in which he assessed permanent impairment and various treatment disputes.[4]
[4] Insurer’s initial bundle p 2,356.
Medical Assessor Home reported following the accident Ms Faridy was transported by ambulance to Nepean Hospital with complaints of pain in her right shoulder and right wrist. She also reported chest pain. He noted she was referred for chest X-ray, right shoulder and right wrist imaging which all showed no bony imaging. Ms Faridy was discharged home with analgesia.
The claimant’s general practitioner (GP) Dr Rabbi arranged further imaging and referred the claimant to Dr Rao and to Dr Dowla for nerve conduction studies. Ms Faridy was referred to Dr Kuo. She underwent physical therapy and a series of two corticosteroid injections to the right shoulder.
On 1 August 2019 she underwent right shoulder rotator cuff repair, biceps tenodesis and subacromial decompression under the care of Dr Kuo.
In relation to the left shoulder Ms Faridy stated the pain developed in April 2019. She underwent an X-ray and ultrasound of the left shoulder in October 2019 and an MRI scan of that shoulder on 12 August 2020 which was repeated on 25 January 2021 due to persisting pain. Ms Faridy reported she underwent an injection to the left shoulder in late 2019 or early 2020 without benefit.
Ms Faridy continued physiotherapy with Ms Robinson until December 2021. At the time of the assessment Ms Faridy was taking Paracetamol 2-4 tables most days, Ibuprofen approximately once weekly, Mobic approximately monthly. She was also taking Thyroxine Glucosamine, Fish Oil and Vitamin D.
Medical Assessor Home reported Ms Faridy experienced constant neck and right shoulder pain. She also reported constant left shoulder pain. He reported Ms Faridy was independent for activities of self-care but fastens her bra at the front. She can lift small bags by her side but avoids overhead lifting. He reported at home she undertakes cooking, dish washing, cleaning at bench height and placing clothes in the washing machine. Washing is hung out by others. A cleaner completes heavier chores such as bathroom cleaning, mopping and vacuuming each fortnight. Medical Assessor Home reported this was funded by the insurer until mid-2021.
Medical Assessor Home reported Ms Faridy had reduced her hours of work as a medical receptionist but had since obtained work closer to home and now worked part time as a practice manager in Kellyville.
Medical Assessor Home also reported Ms Faridy was involved in a subsequent accident on 25 October 2019 when she sustained a fractured right scaphoid. She reported a good recovery over several months with no residual symptoms.
Medical Assessor Home concluded the claimant sustained the following injuries in the accident:
· cervical spine soft tissue injury with imaging demonstrating very mild underlying degenerative changes, and
· right shoulder soft tissue injury subacromial impingement due to bursitis and supraspinatus tendinopathy leading to a partial tear for which there was subsequent surgery consisting of right shoulder subacromial decompression, rotator cuff repair and biceps tenodesis.
Medical Assessor Home concluded the spontaneous onset of left shoulder complaints in early 2019 did not arise directly or indirectly from the effects of the accident or the secondary consequence of a right shoulder condition, noting the absence of significant manual handling tasks with the left shoulder which could constitute “overuse” during that time. He found the left shoulder condition was due to degenerative change.
Medical Assessor Home certified the following injuries caused by the accident gave rise to a permanent impairment of 5%:
· cervical spine: soft tissue injury; aggravation of underlying degenerative change, and
· right shoulder: soft tissue injury; AC (acromioclavicular) joint arthropathy; supraspinatus cuff tear, treated surgically.
Medical Assessor Home certified the following treatment and care related to the injury caused by the accident:
· physiotherapy treatment recommended in AHRR (Allied health recovery request) (No 15) by physiotherapist Nicky Robinson on 14 July 2021, and
· fortnightly cleaning services.
Medical Assessor Home certified the following treatment and care did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances:
·        an MRI of the left shoulder;
·        monthly car cleaning services, and
·        weekly hair-washing services.
Medical Assessor Home certified the following treatment and care was not reasonable and necessary in the circumstances:
· physiotherapy treatment recommended in AHRR (Allied health recovery request) (No 15) by physiotherapist Nicky Robinson on 14 July 2021.
Medical Assessor Home certified the following treatment and care was reasonable and necessary in the circumstances and referred this dispute back to the Medical Assessment Service for assessment by an occupational therapist:
· fortnightly cleaning services.

CERTIFICATE OF MEDICAL ASSESSOR ANNA CASTLE-BURTON

The dispute in relation to fortnightly cleaning services was referred to Medical Assessor Anna Castle-Burton. She issued a certificate dated 28 April 2023.[5] It is this certificate which is the subject of this application for review.
[5] Insurer’s initial bundle p 17.
Medical Assessor Castle-Burton undertook an assessment at the claimant’s home on
12 March 2023.
She reported her daughter Rida, then 16 years of age had a serious allergy to dust mites, so she was fastidious about house cleaning. In a table where she reported on the claimant’s functional status Medical Assessor Castle-Burton reported:
“From her surgery on 1 August 2019 until September 2020, she was approved for domestic assistance for heavy household cleaning for once a week for 3 hours. When she moved to her current home following a dispute her domestic assistance was reduced to 3 hours a fortnight from September 2020 until the funding ceased for the service in December 2021.
Since December 2021 to current, she continues to self-pay domestic assistance from Pristine Cleaning for 3 hours a fortnight as she reported being unable to do any of the heavy household cleaning that requires extensive bending, repetitive push/pull movements and any of the heavy tasks such as vacuuming, mopping, scrubbing toilets and showers due to her pain and physical restrictions. She can wipe bench tops, wash dishes and do dusting. She relies on her daughters to do quick vacuuming and a spot mop each day plus keep their bedrooms clean.”
Medical Assessor Castle-Burton reported Ms Faridy had a functional range of movement in her neck, back and shoulder with no obvious pain behaviour limiting her functional movement. She stated Ms Faridy did not demonstrate any significant limitations to prevent her from re-engaging in domestic tasks.
She certified the following treatment and care was reasonable and necessary in the circumstances:
· from 18 July 2020 to 20 December 2021, fortnightly cleaning, is reasonable and necessary in the circumstances and related to injuries causally related to the subject accident.
She certified the following treatment and care was not reasonable and necessary in the circumstances:
· fortnightly domestic assistance from 21 December 2021 ongoing for the future.

REVIEW PROCEDURE

The claimant lodged an application for review of the medical assessment of Medical Assessor Castle-Burton on 28 May 2023 within 30 days of the date on which the certificate of Medical Assessor Home was made available to the parties.
On 31 July 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6] The review is by way of a new assessment of all matters with which the medical assessment is concerned.
[6] Rule 128 of the PIC Rules.

THE EVIDENCE CONSIDERED BY THE PANEL

In addition to the evidence set out below the Panel also reviewed the certificates of Medical Assessor Home and Medical Assessor Castle-Burton referred to above.

Treating medical evidence
Dr Mohammed Rabbi, general practitioner

On 2 February 2021 Dr Rabbi reported Ms Faridy had been suffering from “bilateral neck pain, neck pain and upper back pain due to R shoulder: partial tear and tendonitis of 2 tendons + Labral injury, Reactive Neck and Left shoulder pain”. Dr Rabbi recommended ongoing physiotherapy and ongoing domestic assistance at least once a week.
Dr Rabbi provided a report dated 30 July 2021. He stated it was clear from the reports of
Dr Kuo, Nicky Robinson and Dr Leaver that Ms Faridy had been struggling with ongoing pain and tightness in her neck, thoracic back, both shoulders, left arm, right chest and trunk. He commented Ms Faridy had displayed a positive attitude in returning to unrestricted and full time work but recommended ongoing physiotherapy treatment to keep her functional.
Dr Rabbi reported to the claimant’s then lawyers on 31 August 2022.[7] In relation to the right shoulder, he diagnosed a partial tear and tendonitis of two tendons and a labral injury.
[7] Insurer’s initial bundle p 2,241.
Dr Rabbi reported Ms Faridy had ongoing neck pain, spasm on the right of the neck, pain to the right upper chest, pain under the right arm and upper bilaterally. He also reported symptoms in the left arm.

Dr Rabbi reported the right shoulder was a direct consequence of the injury whilst the left shoulder injury happened because of compensation overwork to save her right shoulder. He reported the ongoing physical pain affected Ms Faridy both physically and psychologically.
Dr Rabbi reported the right shoulder internal rotation, elevation and abduction was markedly restricted following the surgery. He reported Ms Faridy required a cleaning service fortnightly.

Ms Nicky Robinson, physiotherapist, 27 January 2021

Ms Robinson of Physio Inq, Glenmore Park wrote to the insurer in respect of the decision to decline treatment, noting she had had at least 109 treatment sessions.[8]
[8] Insurer’s initial bundle p 1,499.
She reported Ms Faridy had the physical ability to lift more than 3 kg in sessions, however with repeated motions and sustained postures her symptoms and poor biomechanics, namely shoulder hitching, increase. She also noted whilst symptoms such as right sided axilla/trunk and anterior chest/shoulder pain are constant and unchanged, other symptoms including posterior pain and referred pain fluctuate and in general Ms Faridy reported significantly less neck pain.
Ms Robinson also noted that whilst Ms Faridy’s objective findings had fluctuated, her range of motion in general had improved. She recommended further treatment. Whilst not suggesting Ms Faridy would improve 100% Ms Robinson stated she anticipated with further treatment Ms Faridy would increase her functional strength capacity and have a reduction in symptoms.

Ms Melissa Foley, Pinnacle Rehab, 18 May 2021

Ms Foley undertook an activities of daily living (ADL) assessment on 17 May 2021.[9] At that time Ms Faridy was working four hours a day four days a week as an administrative assistant at Kellyville Village Medical Centre.
[9] Insurer’s initial bundle p 1,902.
Ms Foley reported Ms Faridy had constant tightness in her shoulders causing neck pain and headaches, she also reported weakness in her left hand and below her left elbow. She reported continuous or sustained movements aggravated her pain.
Ms Foley reported Ms Faridy was independent with meal preparation and cooking, with light cleaning tasks, such as wiping down surfaces and with placing laundry in the machine.
Ms Faridy reported she was unable to complete tasks such as vacuuming, mopping and hanging washing on the line due to limited range of movement in her upper limbs.
Ms Foley recommended the continuation of cleaning services once per fortnight.

Dr Warren Kuo, orthopaedic surgeon, 22 July 2021

Dr Kuo was the treating orthopaedic surgeon. He noted Ms Faridy had reported with physiotherapy her symptoms increased.[10] He also reported Ms Faridy described some limitations with some ADLs, but she managed them with pain.
[10] Insurer’s initial bundle p 1,919.
He reported that whilst there had been a long treatment timeline for Ms Faridy her symptoms had become chronic, and he suspected there would be an ongoing degree of pain and discomfort. He recommended ongoing indefinite treatment to contain the symptoms whilst Ms Faridy was reporting some benefit.

Medico-legal reports

Professor William Cumming, orthopaedic surgeon

On 23 June 2020 Professor Cumming completed a medicolegal report at the request of the insurer. His examination revealed full range of cervical movement, except lateral flexion was a little less to the right than left. Forward flexion was full range. He found no tenderness or spasms in the cervical or trapezius region. Professor Cumming found limitation of movement of the right shoulder with flexion to 140° and extension 40°, adduction to 50° and abduction to 120° with pain at the limit.
His diagnosis was soft tissue injuries to the right wrist region resulting in ongoing pain in her paracervical musculature. He noted the claimant subsequently developed shoulder symptoms and had a supraspinatus tear and biceps tenodesis. His view was that Ms Faridy had suffered an aggravation of her right shoulder related to the accident.
On 22 November 2020 Professor Cumming reviewed the claimant. His examination revealed a full range of movement of the left shoulder and in the right shoulder reduction in flexion to 150°, 40° of extension and 40° adduction. He diagnosed an injury to the cervical region and shoulder. He found degenerative changes in her left shoulder but no whole person impairment. He found 8% upper extremity impairment in the right shoulder, converting to a 5% WPI.

Dr Andrew M Leaver, consultant musculoskeletal physiotherapist

On 19 April 2021 Dr Lever completed an independent physiotherapy assessment for the insurer.[11] Ms Faridy complained of persistent neck pain, pain in her upper trapezius, muscle tension and headaches, plus pain affecting both shoulders and difficulty lifting overhead.
[11] Insurer’s amended bundle p 1.
He noted Ms Faridy had attended 139 physiotherapy appointments to date and 39 exercise physiology sessions. The reported active movements of the neck were well preserved in all directions and active movements of the right shoulder had well preserved mobility. He found flexion of the right shoulder was 170° and same on the left, extension 50°, abduction 170° and lateral rotation 60°.
Dr Lever reported Ms Faridy presented with complaints of chronic back and bilateral shoulder pain which he attributed to the accident. He classified her neck complaints as Whiplash Associated Disorder Grade 2. He noted that 20 months post shoulder surgery, Ms Faridy had made an excellent recovery with respect to range of motion and strength but remained troubled by persisting pain and poor endurance and activity tolerance. She presented with overall features of low-level physical impairment of neck and shoulder mobility with persisting high level symptom complaints. Ms Faridy presented as hypervigilant with a tendency to be overprotective with movements and had symptoms related to chronic muscle tension.
Dr Lever noted the claimant had received an extraordinary amount of physical treatment, both physiotherapy and exercise physiology treatment, and had an over reliance on passive physiotherapy and over reliance on supervision of simple exercise routines.
Dr Lever found concurrent physiotherapy and exercise physiology treatments were not reasonable and necessary and a single physical treatment provider will be more effective and likely more efficient. He recommended up to eight additional physiotherapy treatments over three months.

Earning Capacity Assessment Report

Dr Robin Mitchell completed an earning capacity assessment report dated 2 December 2021 after undertaking an assessment on 16 November 2021.[12]
[12] Insurer’s amended bundle p 24.
Dr Mitchell reported Ms Faridy had pain in each shoulder, more so the right than the left. He reported mid thoracic back pain and noted any arduous physical activity made her symptoms more noted. He reported she was fully independent with ADL’s and could manage the normal domestic activities in her home. He also noted she had paid assistance with cleaning for up to three hours per fortnight.
Dr Mitchell noted a normal physical examination other than mild restriction of movement of the right shoulder. In respect of lifting and carrying he recommended the following restriction:
“All physical activities undertaken should be carried out below mid chest height and close to the body trunk, particularly if repeated or sustained in nature.
It would be appropriate that frequent manual handling actions should be limited to 5 kg in force, with respect to lifting and carrying actions undertaken.
Occasionally up to 10 kg should be possible, in the manner described above.”
He also recommended the following additional restrictions:
‘Fixed and awkward spinal postures should be avoided, including unsupported spinal bending and frequent twisting of the lower back. Frequent posture movement should take place throughout the day, alternating between standing, moving about, and sitting down for at least short periods of time.”
Dr Mitchell opined that Ms Faridy did not require any future treatment other than simple analgesic medication to be used as required.

Dr James Bodel, orthopaedic surgeon, 31 May 2021

Dr Bodel assessed the claimant at the request of her then lawyers and provided a report.[13]
[13] Insurer’s initial bundle p 1,894.
At that time Ms Faridy was complaining of pain at the base of the neck and over the top of both shoulders. Head down posture or use of the arms overhead aggravated her pain and rolling onto either side causes her to wake.
Dr Bodel reported Ms Faridy struggled with household maintenance and cleaning, particularly overhead activities. She had difficulty hanging out washing, vacuuming or cleaning the bathroom.
On examination he noted a restricted range of shoulder movements. Dr Bodel reported a primary injury to the left shoulder, namely rotator cuff pathology. He thought the diagnosis was subacromial and subdeltoid bursitis. He noted the left shoulder had become increasingly troublesome over time. He concluded the ongoing pain in the neck and both shoulders was likely to persist indefinitely.

Medical Assessments

Medical Assessor Sue Arnold, 28 September 2020

Medical Assessor Arnold, occupational therapist issued a certificate dated
28 September 2020.
She certified it was reasonable and necessary for Ms Faridy to be provided with domestic assistance from 4 May to 18 July 2020, while living at Glenmore Park, with services on a weekly basis at a cost of $120 per session. She found that ongoing weekly house cleaning was not reasonable and necessary, but fortnightly cleaning from 18 July 2020 to
11 October 2020 was reasonable and necessary.

SUBMISSIONS

Claimant’s submissions

The claimant provided submissions in the Application form uploaded to the Commission portal on 28 May 2023.
The claimant submits the photographs attached to the report of Medical Assessor Castle-Burton have flipped the shoulder shown as injured. The claimant states in the photographs attached to the report the zip on the chest appears on the right side but the claimant asserts the zip is, in fact, on the left side of the chest. As a result, the claimant submits the report of Medical Assessor Castle-Burton demonstrates restricted movement of the left shoulder and a normal range of movement of the right shoulder when it is the right shoulder which does not have full movement.
Ms Faridy also submits Medical Assessor Home reported “there is a requirement for cleaning services arising from the subject accident. The claimant suffers from ongoing neck and right shoulder complaints, and it would cause difficulty with overhead cleaning and heavier domestic chores such as vacuuming using a normal vacuum cleaner. She could perform spot vacuuming with a Dyson sick vacuum cleaner”. Ms Faridy submits the certificate of Medical Assessor Castle-Burton is inconsistent with the findings of Medical Assessor Alan Home.
Ms Faridy also notes that Medical Assessor Castle-Burton found quite reduced strength in both of her hands but did not take the reduced strength into consideration when issuing her certificate.
Ms Faridy submits her posture where the right shoulder is raised over the left shoulder is because she has constant pain in her neck and shoulders consistent with the findings of Medical Assessor Castle-Burton of muscle tension and tightness to the right trapezius area.
Ms Faridy also points out that Medical Assessor Castle-Burton referred to the initial certificate of determination – internal review completed by Abbey Norman which erred in stating she had returned to full time employment when, in fact, she has never returned to full time employment due to the impact of the accident-related injuries.

Insurer’s submissions

The insurer provided submissions dated 15 June 2023.
The insurer notes the claimant alleges that the photographs used in the certificate of Medical Assessor Castle-Burton have been flipped showing her right shoulder as her left and her left shoulder as her right. However, the insurer notes the photographs at the bottom of page 10 of the certificate shows the claimant reaching her hands into the air and the photograph on the left shows the right arm and the photograph on the right shows the left arm.
The insurer disputes the assertion by the claimant that the measurements recorded by Medical Assessor Castle-Burton were swapped meaning her injured right shoulder was measuring as her uninjured left shoulder.
The insurer submits even if the photographs were not included in the certificate Medical Assessor Castle-Burton completed a full assessment and reported on her clinical findings on the day of the assessment.
The insurer submits the findings of Medical Assessor Home were not binding on Medical Assessor Castle-Burton and she was not obligated to find a need for cleaning services.
The insurer agrees Medical Assessor Castle-Burton referred to the old internal review report but asserts it was not relied upon to form a view adverse to the claimant.

THE EXAMINATION

Who attended the assessment.

The occupational therapy assessment took place at Ms Faridy’s home. Only Ms Faridy contributed during the 2½ hour assessment. Her husband was home but didn’t participate.

History
Psychosocial and pre-accident history

Ms Faridy and her husband immigrated to Australia in 2000 from Pakistan with their two oldest children. They were six and four years old at the time. Their third child was born in Australia.

Pre-accident social situation

Ms Faridy and her family were living in Glenmore Park. She worked full-time as a medical receptionist at Kingswood Mediclinic. Her husband works as a Town Planner working for Ryde Council.

History of the accident

Ms Faridy reported that she finished work on 8 June 2018 at about 3pm. She was working in Kingswood and went to Penrith Westfield to do some grocery shopping. As she was exiting the carpark, her vehicle was hit by an oncoming vehicle. She was hit on the passenger side and pushed across the road into a building. Her airbags deployed.

Post-injury social situation

They moved from their prior home in Glenmore Park about three years ago. That house was 30 years old and needed to be cleaned regularly because of mould in the bathrooms. When they moved, she advised the insurer that they no longer required weekly cleaning. The house was new, so it didn’t have the same issues as the old house. The insurer continued to pay for fortnightly cleaning until December 2021.
Only one of Ms Faridy’s children still lives at home. Her 29-year-old son is working in the United Kingdom as a lawyer. Her 26-year-old daughter trained as a social worker, married in August 2023 and subsequently moved with her husband to live in the United States of America. Her youngest daughter is 21. She is about to graduate from Macquarie University as a Psychologist. Ms Faridy stated, “in our culture, kids don’t leave home until they are married. We are Islamic. This is our religion and our culture”.
Ms Faridy said that her youngest daughter has allergies to dust mites and was trialling a new treatment last year however that wasn’t successful. The allergies started in her childhood. She explained that that is why they have always had to ensure her room was very clean.

Details of any relevant injuries or conditions sustained since the accident.

A few months after surgery, Ms Faridy said that she started to have problems with her other shoulder. Her surgeon advised her that was because she was compensating for her injured right shoulder. Dr Kuo organised scans and identified some issues with her left shoulder. He wrote to the insurer, seeking approval for further treatment which was initially approved.
Ms Faridy had two injections and physiotherapy. She hasn’t had surgery.
Ms Faridy’s claim was settled in June 2023 for the cervical spine and right shoulder only as liability for the left shoulder was declined.

History of symptoms and treatment following the accident

Ms Faridy said immediately after the accident she felt pain in her neck, radiating into her right shoulder and arm. She was taken to Nepean Hospital where soft tissue injuries were confirmed. She remained in hospital for a few hours and was then discharged home. She then saw her GP, Dr Rabbi and had five days off work. She said that her right arm was swollen and in a sling. She then returned to her full-time duties as a receptionist at a medical centre. She was referred for physiotherapy but initially didn’t find it helpful. She was sent for further scans, which “didn’t show anything”.
Her GP sent her to an orthopaedic surgeon, Dr Kuo who performed injections in her right shoulder. The first injection provided some relief for a couple of weeks. Ms Faridy was subsequently sent for an ultrasound, which showed “some tears in my right shoulder”.
Dr Kuo recommended surgery, but Ms Faridy was hesitant, preferring to try exercise physiology and hydrotherapy.
When that was unsuccessful, she eventually proceeded to surgery in August 2019.
Ms Faridy does not believe the surgery was a success, stating, “before the surgery I had full movement in my right shoulder, now I have restricted movement and ongoing pain”.
Ms Faridy said she is no longer seeing Dr Kuo. She has been recommended pain management but does not want to do that if it means taking strong medication. Nerve stimulation has been suggested, however Ms Faridy doesn’t know “if my pain is nerve related”.
She was doing Exercise Physiology at the gym at the same time as she was attending physiotherapy. She said that she was asked to choose between exercise physiology and physiotherapy as opposed to having both because the insurer would only fund one modality for three months. She chose physiotherapy.
Ms Faridy’s last insurer funded treatment was in mid-2021. She kept paying privately for weekly physiotherapy until the end of 2021. Since then, she has had sporadic physiotherapy treatment “when the pain is very bad”.
The insurer was also paying ($60) for weekly hair washing. They stopped paying for that in mid-2021 and Ms Faridy has continued to pay for it herself, every three or four weeks. Approximately two years ago, she stopped attending her hairdresser to colour her hair.

Current symptoms

Ms Faridy described her current symptoms:
·        constant pain in the right side of her neck and into her right shoulder. Ms Faridy takes Panadol and Nurofen three to four times a week, two tablets at a time. She takes Mobic about once a month when her pain is higher. She stated, “the intensity changes, some days it is worse than others”;
·        pain is worse after prolonged activity such as work;
·        her pain is worse at nighttime, and “I can’t lie on my side”. That affects her sleep. She cannot lay for more than 5 minutes on either side. Her physiotherapist recommended that she take medication for sleep, but she chooses not to;
·        Ms Faridy gets occasional headaches which start at the base of her neck. Those are only once or twice a week and are managed with Nurofen or Panadol, and
·        Ms Faridy commented “I do still have pain in my left shoulder, but they have declined liability for that. I do not want to have surgery. Sometimes the pain is worse in the left side than the right”.

Current and proposed treatment

Ms Faridy is “paying the gap” and using the five physiotherapy sessions allowed under Medicare and five sessions under her private health cover. She realises she has had a lot of physiotherapy treatment and acknowledged that it may not provide long-term benefit.
She is not doing much home-based exercise because, after a few repetitions, her right shoulder will “hitch” and become increasingly sore. In hindsight, she believes that perhaps being set up in a gym environment by an exercise physiologist would have been more beneficial than ongoing physiotherapy treatment.

Employment status

At the time of her accident, Ms Faridy was working full-time, 76 to 80 hours per fortnight, as a medical receptionist. She had five days off work before returning to full-time work.

In April/May 2019, Ms Faridy reduced her hours. She believes she was working six hours a day. She had two or three months off work after surgery then returned to work on reduced hours. She was initially working three days, three hours per day, and increased to 16 hours a week. She claimed, “I know that is my limit”.
Initially, when the Faridys moved, she continued working at her pre-injury medical practice. That was a 1 hour commute each way. She said that the driving was making her pain worse. She continued to commute for three months before she started to look for a local job.
She secured work as a Senior Receptionist in January 2020. She started working 4 hours, 4 days a week and was promoted to Practice Manager within a couple of months. Her work is flexible, and she is employed to work 16 hours minimum per week. She will usually work three or four days a week, 4 to 6 hours per day. She stated, “If I work a longer day, I am totally drained.” Her workstation at work has been set up correctly to accommodate her.

CLINICAL EXAMINATION

Functional status

Range of Motion [refer to photographs 1 to 8]: Ms Faridy has limited range in the right shoulder which was not present prior to surgery. She has full range of movement in the left shoulder.
Functional Mobility: She demonstrated independence with transfers, balance and walking. She believes her right shoulder looks elevated when she walks, although that wasn’t obvious during the assessment.
Sitting tolerance: Her sitting tolerance appeared unlimited. Ms Faridy said that she can drive about 20 minutes with ease, but she normally avoids longer drives. Her husband does the driving when they are travelling longer distances. They drove to Melbourne a couple of months ago, and Ms Faridy managed but claimed her pain was worse as a result.
Walking tolerance: Ms Faridy stood and walked within the limitations of the assessment. She said that she can walk for about 40 minutes without an increase in pain. She reported that the worst posture for her is lying down and advised that she “gets pain immediately in both shoulders”.
Upper Limb Function: Her sensation is normal. Ms Faridy described a slight reduction in power in particular grip strength. She said that she “struggles with heavy dishes and opening jars”.
Reaching/Lifting/Carrying: Ms Faridy was limited to reaching with her right arm within her right shoulder range. Her microwave and oven are at good heights. She said that she can lift and carry most things. Her lifting tolerance depends on how she carries things. She can carry a 5kg bag of shopping with her right elbow extended. With her elbow flexed, such as when lifting a pot in the kitchen, she can only carry about 2kg.
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Photo 1: Left shoulder abduction  Photo 2: Right shoulder abduction
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Photo 3: Left shoulder flexion  Photo 4: Right shoulder flexion
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Photo 5: Left shoulder extension                Photo 6: Right shoulder extension

Environmental factors

As noted above, Ms Faridy is able to drive locally, catch public transport and navigate her home and community environments. She has not needed home modifications and equipment. She uses portable clothes drying rack which is readily available and not specific to her needs.
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Photo 7: Left shoulder internal rotation Photo 8: Right shoulder internal rotation
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Photos 9 to 11: Demonstrating taking hair out of and putting hair into a ponytail.
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Photo 12 to 14: Demonstrating functional tasks in the home.

Activities of Daily Living Status

Activity	Reported Functional Status Pre-Injury	Reported Functional Status Post-Injury
Eating/drinking, toileting, grooming, showering & dressing	Independent.	The only thing Ms Faridy claims she is unable to do is wash her hair. She could do this before surgery. She stated “It’s not that I can’t wash my hair. It’s just that it flares my shoulder pain up”. Ms Faridy continues to pay ($60) to have her hairdresser do this every 3 or 4 weeks. She is not getting her hair coloured anymore.
Meal preparation and cooking	Ms Faridy did all of the cooking for her family, only eating out about once a week.	Ms Faridy has continued to cook approximately five times a week. They eat leftovers once a week. She said she can manage with occasional assistance from her husband. Ms Faridy worked out how to manage with her left hand when her right arm was in the sling. She utilises equipment she owned previously such as a pressure cooker and/or a slow cooker to make cooking easier.
Washing up	Ms Faridy has always had a dishwasher. She would load and unload the dishwasher.	She has continued to do this. Her daughter will help occasionally when she is home.
Light cleaning and tidying	Ms Faridy would clean the house every day.	She has continued to do all the light cleaning, including wiping down benches and other surfaces such as the stove. She dusts daily.
Bed-making	Ms Faridy made her own bed daily. Her older children made their own beds and Ms Faridy did that for her youngest daughter.	She has continued to do this. Her husband will occasionally help with making their bed, but if he is not available to help then Ms Faridy can make her bed herself.
Changing linen	Ms Faridy completed this task weekly.	Mr and Ms Faridy recently switched to a king-size bed, and Ms Faridy stated that changing the doona cover has become more difficult. As a result, she is now doing this fortnightly. She said, “It’s very difficult for me. I’m thinking of asking the cleaners to do this. I struggle to shake the doona inside the cover”.
Laundry	Ms Faridy would do all the laundry.	After the accident, Ms Faridy’s oldest daughter would sometimes hang the washing out for her, in particular, the sheets and towels. After she moved out, her younger daughter took on hanging the heavier washing on the line. Ms Faridy can hang lighter items on a drying rack. If nobody is around, she will hang heavier items on the line but “will pay for it” later with increased shoulder pain. She uses a large drying rack when possible, however it is not big enough for sheets and doonas.
Folding of laundry	Ms Faridy did this before.	She can still do this. Her eldest daughter was helping more before she moved out in August 2023.
Ironing	Mr Faridy does his own ironing. The children have always done their own. Ms Faridy did her ironing.	She still irons her own clothes.
Vacuuming	Ms Faridy did all the vacuuming. She vacuumed the living area daily.	Since moving, Ms Faridy is still vacuuming the living area daily. She uses a lightweight Dyson Stick Vacuum. It glides easily on the floorboards but she finds it harder to push/pull on the carpet. She will vacuum the carpet once a fortnight taking 15 minutes and the cleaners do a more thorough job on the alternate fortnights as part of their regular cleaning.
Sweeping	Ms Faridy didn’t sweep regularly, preferring to vacuum.	That hasn’t changed.
Mopping	Ms Faridy did spot cleaning and a thorough mop weekly.	Ms Faridy has continued to do the spot cleaning, and the cleaner will do a thorough mop as part of the fortnightly clean. She finds pushing and pulling the mop to properly clean the floor difficult.
Heavy cleaning of bathrooms, including shower screens and, bathtub and toilet	Ms Faridy has always done all of the heavy cleaning herself, with occasional help from her children. She did a thorough clean of the house every week. It would take her about 3 hours.	Ms Faridy was receiving weekly cleaning at her prior residence. Following the family move in September 2020, the insurer stopped funding the cleaning. Ms Faridy disputed this and an Occupational Therapist completed an assessment and recommended fortnightly cleaning. This was approved, and the insurer paid for fortnightly cleaning until December 2021. Since then, Ms Faridy has continued to receive fortnightly cleaning, paying privately. Two cleaners attend for 1.5 hours each fortnight. They complete the vacuuming, mopping, a deep clean of the three bathrooms and kitchen including wiping the cupboard doors and stove top. They also clean the full-length sliding doors in the living room That costs Ms Faridy $150 plus GST.
House maintenance	Mr Faridy has always done all of the home maintenance, garbage management and gardening.	Ms Faridy’s husband is still responsible for those tasks.
Garbage management
Gardening and lawn mowing
Car Washing	Ms Faridy was hand washing her car before the accident, every 4 to 6 weeks.	Her husband said that he would wash her car after the accident, but he didn’t have time. The insurer approved a monthly car wash service for a few months before an independent assessment indicated Ms Faridy had the shoulder range to complete that task. Ms Faridy now takes her vehicle to a car wash every two or three months. It upsets her that her car is not as clean as she would like it. Her reduced income means that she can’t afford to have it washed more often. It costs her $40 for a basic wash.
Shopping	Ms Faridy did all the grocery shopping on her own. She would complete a big shop once a week and incidental shopping as needed, generally twice a week.	In her current job, her workplace is right next to a Coles Supermarket. Ms Faridy buys a few things 2-3 times a week. Her husband accompanies her for the bigger weekly shop. Regardless of whether he accompanies her or not, she can complete the shopping on her own. However, he will often be available to assist with unloading the car.

Comments on consistency

There was no evidence at the assessment of any inconsistency between Ms Faridy’s reported, observed and assessed right arm range and function.

DETERMINATION

Treatment and Care – reasonable and necessary

Ms Faridy is a 56-year-old woman who was primarily responsible for all indoor domestic tasks prior to her accident on 8 June 2018. That included meal preparation, dishwashing, laundry and household cleaning. Prior to her accident, her adult children would occasionally assist her, but those tasks were mostly her responsibility.
Since the accident, her two oldest children have moved out and Ms Faridy moved to another, newer home which doesn’t need as much care to reduce dust and mould.
Since the insurer discontinued funding fortnightly domestic service from December 2021,
Ms Faridy and her husband have been paying for that service.
Medical Assessor Home assessed Ms Faridy. He found Ms Faridy suffered from ongoing neck and right shoulder complaints which would cause difficulty with overhead cleaning and heavier domestic chores such as vacuuming with a normal vacuum cleaner.
In his certificate dated 29 September 2022 Medical Assessor Home determined that fortnightly cleaning services were related to the injury caused by the accident, namely injury to her cervical spine and right shoulder which he noted had been treated surgically. He found there was a requirement for domestic assistance despite finding that Ms Faridy’s left shoulder impairment was not causally related to the accident.
Ms Piebenga’s examination confirmed Ms Faridy still has range of movement restrictions of her right shoulder consistent with the findings of Medical Assessor Home. Ms Faridy’s reporting of her post-surgery and current right shoulder restrictions is consistent with the examination of Medical Assessor Home and the observations of Ms Piebenga. These findings are also consistent with the findings of Medical Assessor Sue Arnold who found fortnightly cleaning from 18 July 2020 to 11 October 2020 was reasonable and necessary.
These findings are consistent with the opinion of Dr Kuo who, in 2021, reported the claimant’s symptoms had become chronic and she would have an ongoing degree of pain and discomfort. Whilst he did not support domestic assistance Professor Cumming found limitation of movement of the right shoulder. Dr Mitchell recommended all physical activities should be carried out below mid chest height, and frequent manual handling actions should be limited to 5 kg whilst fixed and awkward spinal postures should be avoided. Dr Bodel assessed the claimant on 31 May 2021. He reported a restricted range of shoulder movements and concluded the ongoing neck and shoulder pain was likely to persist indefinitely. Melissa Foley of Pinnacle Rehab undertook an ADL assessment on
17 May 2021 and reported Ms Faridy was unable to complete tasks such as vacuuming, mopping and hanging washing on the line due to the limited range of movement in her upper limbs.
Whilst the Panel concedes these assessments occurred some time ago there is no evidence of any significant change in the claimant’s condition and the Panel is satisfied the finding that fortnightly domestic assistance of three hours a fortnight is reasonable and necessary in the circumstances is consistent with the available medical opinion.
The Panel is satisfied that whilst Ms Faridy would be capable of performing many day-to-day domestic tasks, such as cooking, laundry and light cleaning, more strenuous activities and those above shoulder height are likely to aggravate her right shoulder pain and possibly her neck.
The panel therefore supports the past and ongoing provision of three hours of fortnightly commercial assistance for cleaning, from 18 July 2020 to 20 December 2021 and from
21 December 2021 into the future.
The primary focus of that service should be on heavier and/or repetitive cleaning tasks and those above shoulder height, including thorough vacuuming/mopping, cleaning of full-length glass and deep cleaning of the bathrooms and kitchen. That would ensure the client's living environment remains safe and hygienic without exacerbating her pain.
The Review Panel revokes the certificate of Medical Assessor Anna Castle-Burton dated 28 April 2023 and certifies the following treatment and care is reasonable and necessary in the circumstances:
·domestic assistance for three hours per fortnight from 18 July 2020 to
20 December 2021, and
·domestic assistance for three hours per fortnight from 21 December 2021 and ongoing for the future.

[2023] NSWPICMP 670

12 December 2023