Garcia v Allianz Australia Insurance Limited
[2024] NSWPICMP 407
•24 June 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Garcia v Allianz Australia Insurance Limited [2024] NSWPICMP 407 |
CLAIMANT: | Antoun Garcia |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Cameron Thompson |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Judith Davidson |
DATE OF DECISION: | 24 June 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant injured in a motor accident when a vehicle collided with the front driver’s side of the claimant’s vehicle; dispute as to whether 0 to 6 hour per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the accident from the date of the accident to the date of the Medical Assessment Service (MAS) assessment is reasonable and necessary in relation to the injuries sustained in the accident; MAS Assessor determined that the claimant sustained soft tissue injuries to his neck and back in the accident which had resolved within 2 years of the accident and that any future domestic assistance from the date of the MAS assessment is not causally related to the accident; matter referred to a Medical Assessor (MA) to determine the amount of domestic care needs; MA determined that the following domestic assistance was reasonable and necessary in relation to the injuries sustained in the motor accident – 3 hours per week for 12 weeks from the date of the accident to 14 December 2017, 1.25 hours per week for a further 6 months from 14 December 2017 to 14 June 2018, 0.75 hours per week from 15 June 2018 until 2 years post-accident (21 September 2019), 0 hours per week from 21 September 2019 and continuing for the remainder of the claimant’s life expectancy; claimant re-examined; Held – the soft tissue injuries to the claimant’s neck and back are likely to have recovered within two years of the accident on 21 September 2017 and any symptoms and disabilities thereafter are due to age-related degeneration; the following domestic assistance is reasonable and necessary in the circumstances and relates to the injuries caused by the accident – 8 hours and 30 minutes per week from 21 September 2017 to 20 December 2017, 4 hours and 30 minutes per week from 21 December 2017 to 20 March 2018, 2 hours and 5 minutes per week from 21 March 2018 to 20 March 2019, and 45 minutes per week from 21 March 2019 until 20 September 2019; any domestic assistance in addition to the above during the period from the date of the motor accident on 21 September 2017 to the date of the MAS Assessment is not reasonable and necessary in the circumstances and does not relate to the injuries caused by the motor accident; certificate of MA revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel assessment of treatment (physical) Replacement Certificate issued under section Part 3.4 of the Motor Accidents Compensation Act 1999
(a) 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the motor vehicle accident to the date of the MAS assessment is not reasonable and necessary in relation to the injuries sustained in the subject accident, save as to subparagraph (b) below. (b) The following domestic assistance is reasonable and necessary in the circumstances and relates to the injuries caused by the motor accident: (i) 8 hours 30 minutes per week per week of domestic assistance from the date of the accident on 21 September 2017 for three months until 20 December 2017; (ii) 4 hours and 30 minutes per week of domestic assistance from (iii) 2 hours and 5 minutes per week of domestic assistance from (iv) 45 minutes per week of domestic assistance from 21 March 2019 until |
STATEMENT OF REASONS
BACKGROUND
The claimant, Antoun Garcia, suffered injuries in a motor accident on 21 September 2017. He was driving a Toyota Aurion sedan through an intersection at Rhodes in Sydney when a vehicle which was turning right across the path of the claimant collided with the front driver’s side of the claimant’s vehicle.
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Allianz (the insurer) insured the owner and/or driver of the motor vehicle which collided with the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
MEDICAL ASSESSMENT UNDER REVIEW
The present dispute before the Review Panel (the Panel) is:
(a) whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the motor vehicle accident to the date of the MAS assessment is reasonable and necessary in relation to the injuries sustained in the subject accident.
These constitute medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57-58 of the MAC Act.
The medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act on review by a review panel.
[2] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Alach who issued a certificate dated 24 March 2022 in which she determined that the following treatment is reasonable and necessary in the circumstances:
(a) 3 hours per week of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the accident (21 September 2017) for 12 weeks (14 December 2017) is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident;
(b)
1.25 hours per week of domestic assistance arising from all physical injuries caused by the motor vehicle accident from 12 weeks post accident
(14 December 2017), for a further 6 months (14 June 2018), is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident;
(c) 0.75 hours per week of domestic assistance arising from all physical injuries caused by the motor vehicle accident from 15 June 2018 until two years post accident (21 September 2019) is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident;
(d) 0 hours per week of domestic assistance arising from all physical injuries caused by the motor vehicle accident from two years post accident (21 September 2019) until the date of MAS assessment (18 March 2022) is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident, and
(e)
0 hours per week of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of MAS assessment.
(18 March 2022) and continuing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injuries sustained in the motor vehicle accident.
THE REVIEW
The claimant made an application for referral of the medical assessment of Medical Assessor Alach to a review panel.
On 7 July 2022, the President’s Delegate referred the medical assessment of Medical Assessor Alach to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[4] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[7]
THE MEDICAL ASSESSMENT UNDER REVIEW
[7] Section 63(3A) of the MAC Act.
Certificate of Medical Assessor Rosenthal[8]
[8] IB p 36.
Prior to the assessment of Medical Assessor Alach, Medical Assessor Thomas Rosenthal assessed the claimant on 1 November 2021.
The following treatment disputes were referred to Medical Assessor Rosenthal for assessment:
(a) whether all physical injuries give rise to a need for domestic assistance from the date of the motor vehicle accident to the date of the MAS assessment is causally related to the injury sustained in the subject accident;
(b) whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the motor vehicle accident to the date of the MAS assessment is reasonable and necessary in relation to the injury sustained in the subject accident;
(c) whether all physical injuries give rise to a need for domestic assistance from the date of the MAS assessment and continuing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident, and
(d) whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the MAS assessment and continuing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident.
Medical Assessor Rosenthal obtained a pre-accident medical history and relevant personal details from the claimant including his history of the circumstances of the accident, symptoms and treatment following the accident and his current symptoms. He also performed a clinical examination of the claimant and summarised relevant documentation provided to him for his consideration.
In particular, Medical Assessor Rosenthal refers to the report of Dr Keller dated
2 September 2019 in which Dr Keller believed the claimant suffered from soft tissue injuries initially, but that his ongoing symptoms were now caused by age-related degeneration and Dr Keller also did not recommend any specific surgery and believed that the claimant required no paid assistance and assessed whole person impairment at 0% with regards to the claimant’s lumbar spine.
Medical Assessor Rosenthal diagnosed that the claimant did suffer from soft tissue injuries to his neck and back following the accident on 21 September 2017 and that these injuries are confirmed by the circumstances of the accident and contemporaneous documents.
Medical Assessor Rosenthal refers to the assessments of the claimant by Dr Keller and in particular the last assessment in September 2019 during which Dr Keller noted that essentially the claimant complained of ongoing symptoms but that his soft tissue injuries had recovered. Medical Assessor Rosenthal notes that apparently since the claimant saw Dr Keller, he complains of deterioration but that there appears to be no medical plausibility in relation to this deterioration as a result of the injuries from the motor vehicle accident. In the opinion of Medical Assessor Rosenthal, in the normal course of events, soft tissue injuries are expected to resolve with the passage of time, and the claimant’s ongoing symptoms and disabilities now appear to be related to age-related degeneration.
In the opinion of Medical Assessor Rosenthal, some domestic assistance would have been reasonable, most likely for the first two years following the accident, but that following this, ongoing domestic assistance is related to his degenerative condition.
With regards to causation, whilst Medical Assessor Rosenthal found that the documentary evidence shows that the claimant did suffer from soft tissue injuries to the neck and back following the motor vehicle accident, in his opinion, for the reasons mentioned above, and based upon all the available evidence including clinical records of Dr Lim, the medical reports of Dr Singh and medicolegal reports of Dr Keller, these soft tissue injuries recovered within two years following the accident. Medical Assessor Rosenthal notes that radiology does not show any trauma-related abnormalities and the changes seen in radiology that were reported are not the result of the trauma caused by the accident and he does not accept that any of these abnormalities were in fact aggravated by the circumstances of the accident.
Having found that the soft tissue injuries had resolved within two years of the accident, in the opinion of Medical Assessor Rosenthal any future domestic assistance from the date of the MAS assessment is not causally related to the accident. In his opinion, the ongoing symptoms that the claimant is experiencing relates to age-related degeneration and not the effects of the accident.
Medical Assessor Rosenthal determined that the claimant’s physical injuries give rise to a need for domestic assistance from the date of the motor vehicle accident to the date of the MAS assessment causally related to injury sustained in the subject accident, and that accordingly the amount of domestic care needs will be determined and referred to an occupational therapist for assessment.
Medical Assessor Rosenthal determined that the claimant’s physical injuries do not give rise to a need for domestic assistance from the date of the MAS assessment and continuing for the remainder of the claimant’s life expectancy which is causally related to the injuries sustained in the subject accident and that this therefore cannot be found to be reasonable and necessary.
The certificate of Medical Assessor Alach
After the assessment of Medical Assessor Rosenthal, the following treatment dispute was referred to Medical Assessor Alach, an occupational therapist, for assessment:
(a) whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the motor vehicle accident to the date of the MAS assessment is reasonable and necessary in relation to the injuries sustained in the subject accident.
Medical Assessor Alach examined the claimant on 18 March 2022.
Medical Assessor Alach obtained a pre-accident history from the claimant that he was fit and well at the time of the accident. He did not refer to any physical injuries or psychological symptoms and said that he went to the gym regularly and swam at the beach. He had done martial arts in the past but not in the years before the accident. He said that he was not seeing a local doctor regularly and that he was not taking any medication or seeking treatment from a psychologist or psychiatrist.
The claimant provided a history to Medical Assessor Alach that at the time of the accident he was the driver of a motor vehicle when a car turned in front of him. He said that the air bags went off and he was stunned. He self-extricated from the vehicle and, because he was in “shock”, he thought that he was okay to go home without being checked over at the hospital. He said that there were children in the other car and he was “thinking about them”. The tow truck driver dropped him at their garage and from there a friend took him home to Eagle Vale.
The claimant said that he woke up the next day feeling sore in his back, chest, head and neck, and that at the suggestion of a solicitor he went to see Dr Lim in Paramatta, who prescribed analgesic medication and recommended investigations and physiotherapy. He went to physiotherapy once or twice a week for five or six months, including some treatment in Lebanon. He recalled going to see a neurosurgeon in Lebanon towards the end of 2017 or early 2018, and being sent for X-rays and that physiotherapy was recommended, and recalled receiving physiotherapy everyday whilst he was in Lebanon because he was “fully in pain”. He thought that he attended some specialist doctors when he had returned to Sydney but has not had surgery to his neck or back. The claimant said that he initiated using a walking stick and leather belt to support his spine which was suggested by someone he knew to help manage his back pain. He said that he experiences less pain when walking with a stick and did not recall a physiotherapist recommending that walking aid. He denied any relevant injuries or conditions since the subject accident.
Medical Assessor Alach noted in relation to the claimant’s pre-accident and social situation that he had been living with his daughter, her husband and three children for a couple of years prior to the accident and had his own room in the four-bedroom home, having been separated and then divorced from his wife for many years. He retired from work as a supervisor on construction projects in 2003 and had previously held a builder’s licence but did not have a licence for at least a few years prior to his retirement.
Physically, the claimant reported that prior to the accident he was fit, healthy and pain free, he went to the gym up to 12 hours per week and enjoyed swimming at the beach, but no longer took martial arts classes, but still liked to walk regularly. He said that he was independent with self-care tasks, and in terms of domestic tasks around his daughter’s home, his daughter was mostly responsible for shopping for the household, but he sometimes went shopping with her to “help out”. His daughter cooked most meals for the family, but the claimant made himself breakfast and sometimes lunch and cleaned up afterwards, and heated leftover food. He helped to keep the home tidy including washing the dishes, wiping over benches, taking the rubbish out and stripping and remaking his bed. However, his daughter was mostly responsible for the regular household cleaning and they paid a cleaner once a fortnight. He would occasionally sweep or mop the floors, took the council bins out to the road and brought them back in again. His daughter did most of the household laundry, but he would help by putting on a load of washing, bringing clothes in from a clothesline and folding them and he also helped mow the lawn, tend to the garden and with some home maintenance. He was a licenced driver for an automatic vehicle and drove regularly, mostly around the metropolitan area, and he managed his own finances, contributing money to the running of the household.
The claimant reported that presently he continues to live in his daughter’s home, but since the birth of his daughter’s younger child after the accident he has had to move out of his room and now sleeps on a mattress on the floor. He said that he hopes to be able to move to live separately when he can afford to. He was considering returning to some form of work prior to the accident but has not worked since then and remains on an aged pension. He continues to drive a motor vehicle around the local area including to and from Bankstown to therapy. He said that he had physical impairments from the accident including neck and back pain and leg numbness which make it difficult for him to walk far around his local area, and he had difficulty sleeping comfortably and contributes minimally to tasks around the home, and that his current reliance on his family has affected his mood.
Medical Assessor Alach conducted a clinical examination of the claimant which involved observations of the claimant during the completion of the assessment.
Prior to that assessment, she was provided with the certificate of Medical Assessor Thomas Rosenthal dated 9 November 2021.
Medical Assessor Alach recorded information in relation to the claimant’s current physical presentation including his functional status and activities of daily living.
Medical Assessor Alach commented on the claimant’s consistency. She noted that the claimant was cooperative throughout the assessment but presented as highly pain and disability focused and noted that although he reported wearing a lumbar belt for pain management, most of the time he was not wearing that when he arrived home from physiotherapy.
Medical Assessor Alach noted that when the claimant was asked to, he could walk throughout his home and outside without his walking stick and without noticeable deterioration in his gait.
Medical Assessor Alach noted that it was difficult to confirm some of the claimant’s self-reported physical impairments and limitation through the objective assessment, and that his heavy reliance on the handrails, whilst climbing the stairs one at a time, was inconsistent with his ability to sit, stand and walk during the assessment without appearing in obvious pain, to sleep on a mattress on the floor at night, to get up and down from that to go to the toilet and in the morning.
Medical Assessor Alach took into consideration the following documentation:
(a) various clinical records from Work Doctors;
(b) records from Dr Nabil-Sayed, neurosurgeon in Lebanon;
(c) claimant’s particulars prepared by the claimant’s solicitor;
(d) report of Dr Peter Conrad dated 20 March 2018;
(e) MRI scans of the lumbar and lumbo-sacral spine dated 21 March 2018;
(f) X-ray of the abdomen dated 29 March 2018;
(g) report of Dr Andrew Keller, occupational physician dated 6 April 2018;
(h) report of Dr Rohit Kumar, plastic surgeon dated 11 January 2019;
(i) Certificate of Capacity dated 1 March 2019, and
(j) report of Dr Andrew Keller dated 2 September 2019.
Medical Assessor Alach formed the view that overall the claimant’s physical capacity was not entirely consistent with his reporting. She noted that during the assessment, the claimant reported that his daughter was mostly responsible for the shopping, main meal preparation and heavy cleaning pre-accident with the assistance of a paid cleaner but that this was inconsistent with the Statement of Particulars which documented his need for gratuitous assistance with a range of tasks which were not his pre-injury roles.
Medical Assessor Alach accepted the determination of Medical Assessor Rosenthal that the claimant sustained soft tissue injuries to his neck and back in the accident, and accepted that the claimant’s soft tissue injuries are likely to have recovered and any domestic assistance would only have been reasonable for the first two years following the accident, and that his ongoing symptoms and disability now appear to be due to age-related degeneration and ongoing limited assistance would be related to his degeneration condition.
Medical Assessor Alach found that from the date of the accident for the first twelve weeks, the claimant was likely to have experienced limitation in his performance of his share of the household duties and reasonably needed a total of three hours per week for low body personal care, light cleaning and tidying, stripping and making his bed, with some of the laundry and taking out the garbage bin as well as his share of lawn mowing and tidying the backyard.
Medical Assessor Alach determined that from 14 December 2017 for a further six months (not including the four-week period the claimant was in Lebanon) he reasonably needed help to remake his bed, his share of the laundry, taking out the garbage bins and his share of lawn mowing and tidying the backyard – a total of 1.25 hours per week. From
14 December 2018 until two years post injury, in the opinion of Medical Assessor Alach, the claimant’s recovery from his acute injury is likely to have allowed him to return to more household tasks and that during this period only the assistance that was needed for the heaviest of his share of domestic tasks is considered accident related, which she assessed at 0.75 hours per week.
For the period from two years post accident to the date of the MAS assessment, in the opinion of Medical Assessor Alach, the claimant required zero hours per week of gratuitous and domestic assistance arising from his physical injuries caused by the accident, and that for the same reason, from the date of the MAS assessment onwards, the claimant required zero hours per week of commercial domestic assistance for the remainder of his life expectancy.
STATUTORY PROVISIONS / GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. In particular, ss 5D and 5E of the CL Act apply to the MAC Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act. The observations are still pertinent to the presently constituted Panel.
MATERIAL BEFORE THE PANEL
The Panel issued a direction dated 17 October 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in this Review.
In response to that direction, the claimant uploaded to the portal at AD2 a bundle of documents paginated from pages 1 to 124 (CB). The insurer uploaded to the portal at AD1 a bundle of documents paginated from pages 1 to 124 (IB).
The Panel also issued a direction to the claimant on 17 October 2022 to upload to the portal and serve on the insurer the following:
(a) clinical records of all general practitioners who treated the claimant from 1 September 2012 to the date of the accident on 2 September 2017;
(b) the report of Dr Peter Conrad dated 20 March 2018, and
(c) the certificate and reasons of any psychiatrist who had assessed the claimant at the request of the Medical Assessment Service.
In response to that direction, the claimant uploaded to the portal the following:
(a) clinical notes from Eagle Vale Medical Centre (AD3);
(b) report of Dr Peter Conrad dated 20 March 2018 (AD4), and
(c) certificate of Medical Assessor Brian Parsonage (AD5).
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 52 to 55 above in making its findings and determinations.
SUBMISSIONS
Claimant’s submissions[11]
[11] CB p 6.
These submissions are relied upon by the claimant in support of the application for review of the certificate of Medical Assessor Alach.
The claimant submits that the assessment of Medical Assessor Alach was incorrect in a material respect on the basis that she failed to provide a proper basis for failing to take a proper history, failing to provide a proper basis for determinations in respect of care and failing to address any inconsistencies noted with the claimant.
The claimant submits that the Medical Assessor failed to take a proper history of pre-accident contribution of the claimant towards domestic chores and personal care to enable a proper consideration of the effects of the accident and the need for care. It is submitted that the Medical Assessor provides an Activities of Daily Living Status table, but that whilst the table provides an estimate of assistance provided after the subject accident, it does not record any number of hours for each activity before the accident. The claimant submits that a proper history which provides the number of hours of domestic chores and personal care undertaken prior to the accident is necessary for a proper consideration of the need for hours of assistance post-accident.
The claimant further submits that the Medical Assessor did not provide a proper basis for determining the assessed number of hours of care required in the Activities of Daily Living Status based upon her findings on Functional Status.
In particular it is submitted that, in respect of the Medical Assessor’s assessment of shopping, whilst the claimant reported that he requires assistance with heavy shopping, the Medical Assessor provides an estimate of zero hours of assistance, notwithstanding that the Medical Assessor observes that the claimant can only lift and carry light weights but does not address heavier shopping care needs beyond three or four kilograms.
With regards to light cleaning, the claimant submits that whilst the Medical Assessor observed that the claimant “walked slowly around the house without walking stick – slowly and with quite a symmetrical gait” and that he has a standing tolerance for about “2 minutes at a time”, the Medical Assessor considered the claimant was capable of light cleaning, including some sweeping and dusting services without properly explaining how the claimant is able to undertake these tasks given the restrictions noted by her.
With regards to laundry, the claimant submits that he reported sharing the household laundry for three adults and three children and stripping his own bed prior to the accident, and that since the accident he does not contribute to these chores, however, despite recording a functional tolerance of lifting and carrying light weights, walking outside the home with the use of a walking stick and standing for about two minutes at a time, the Medical Assessor has not provided a proper basis for assessing zero hours per week in assistance with laundry tasks.
The claimant submits that had a proper assessment of the need for care for the above tasks been undertaken by the Medical Assessor, the total number of hours of care would have exceeded the threshold (entitling the claimant to damages for past gratuitous attendant care).
The claimant further submits that whilst the Medical Assessor noted inconsistencies at page 25 of her certificate and reasons and during the Functional Status, she has not addressed these observed inconsistencies with the claimant to enable the claimant to be provided with an opportunity to address any reported inconsistency. The claimant submits that he ought to have been afforded an opportunity to address the inconsistencies to enable a proper and fair assessment.
For the above reasons, the claimant submits that the certificate of Medical Assessor Alach is incorrect in a material respect and that the matter should be referred to the Review Panel.
Insurer’s submissions to President’s Delegate[12]
[12] IB p3.
The insurer notes that in November 2021, Medical Assessor Rosenthal accepted that the claimant’s soft tissue injuries sustained in the accident could have resulted in a need for domestic assistance for a period of two years post-accident. The insurer submits that the question of what amount of past domestic assistance is reasonable and necessary was referred to Medical Assessor Alach for determination.
The insurer submits that consistent with the findings of Medical Assessor Rosenthal, Medical Assessor Alach also found that the claimant’s neck and back soft tissue injuries are likely to have recovered and any domestic assistance would only have been reasonable for the first two years following the accident, and that therefore, any ongoing symptoms and need for assistance would be related to the claimant’s degenerative condition.
The insurer opposes the claimant’s application for review of the assessment of Medical Assessor Alach and submits that that application ought to be dismissed. It submits that the claimant has failed to identify any material error pursuant to s 63 of the MAC Act. It submits that Medical Assessor Alach took a proper history of the claimant’s pre and post-accident situation, appropriately reviewed and evaluated all available evidence and provided sufficient and clear reasons for her conclusions.
With regards to the claimant’s allegation that the Medical Assessor failed to take a proper history, the insurer notes that the scope of the treatment dispute referred for assessment was whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the accident from the date of the motor accident to the date of the MAS assessment is reasonable and necessary in relation to the injuries sustained in the subject accident.
The insurer submits that quantifying the number of hours of each pre-accident activity undertaken prior to the accident is not necessary for the proper determination of this dispute. It submits that Medical Assessor Alach took a proper history of the claimant’s pre-accident and post-accident contribution towards domestic chores and personal care, and that accordingly she had sufficient evidence before her to enable a proper determination of the treatment dispute, and in particular to make her finding that any domestic assistance related to the accident would only have been reasonable for the first two years following the accident, and thereafter, any ongoing limited assistance required would be related to the claimant’s degenerative condition.
The insurer makes the following submissions in response to the allegation that the Medical Assessor failed to provide a proper basis for determination of care:
(a) Shopping – the claimant’s submissions incorrectly assume that the claimant was responsible for heavy shopping prior to the accident and does not take into account that the claimant’s pre-accident contribution was limited to light shopping and does not acknowledge Medical Assessor Alach’s reasoning that although the claimant reported needing help with heavier shopping, his current performance is very close to his pre-injury role, while living with his daughter and her family. The insurer submits that the Medical Assessor appropriately evaluated all evidence before her and provided proper reasons for her determination;
(b) Light cleaning – the claimant’s submissions ignore relevant evidence such as the claimant’s own concession that he can still perform light cleaning and can pace his performance if the task is within his reach, and the claimant’s admission that he is still able to perform light cleaning. The insurer submits that the Medical Assessor took into account her own clinical observations in reaching a determination of zero hours of assistance for light cleaning from six weeks post-accident. The insurer submits that the claimant’s almost normal range of movement in both shoulders and his observed capacity to perform tasks including walking with and without a walking stick, walking up and down a steep slope in the driveway, standing with and without his walking stick, reaching shelves above his head, squatting almost to the ground and kneeling on one knee to reach the lower crisper in the fridge, is not inconsistent with the Medical Assessor’s determination that the claimant would be able to manage his pre-accident light cleaning tasks of wiping down benches, some sweeping and dusting surfaces.
(c) Laundry – contrary to the claimant’s submissions, the insurer notes that the Medical Assessor actually assessed that some assistance was required with the claimant’s share of laundry tasks from the date of the accident until 21 September 2019. The insurer submits that the Medical Assessor provided clear and sufficient reasons in support of her determination that the claimant did not require assistance with his share of laundry tasks form 14 June 2018, and refers to her notes in relation to her clinical observation of the claimant.
With regards to the allegation of failure to address inconsistencies, the insurer submits that the claimant’s submissions do not provide any particulars on how such alleged failure by the Medical Assessor has led to an unreliable or unfair assessment, or amounts to a material error in the assessment as required by section 63 of the MAC Act.
The insurer submits that whilst Medical Assessors are expressly required to bring inconsistencies to the claimant’s attention in the context of permanent impairment disputes,[13] it is not aware of such a specific requirement for treatment disputes.
[13] Per clause 1.1 of the Motor Accident Permanent Impairment Guidelines.
The insurer submits that Medical Assessor Alach conducted a proper and fair assessment and that any failure to address inconsistencies with the claimant would not amount to a material error, particularly having regard to the minor nature of the inconsistencies identified and the Medical Assessor’s thorough assessment and her clear path of reasoning for reaching her conclusions.
Insurer’s submissions to Medical Assessor Alach[14]
[14] IB p 12.
The insurer notes that the following information remains outstanding:
(a) pre-accident clinical records from Eagle Vale Medical Centre;
(b) Medicare and PBS history, and
(c) Centrelink records.
The insurer reserves the right to rely on this material in due course and submits that the matter cannot properly be determined in the absence of this information.
The insurer concedes that the claimant sustained minor soft tissue injuries including the soft tissue sprain to the lumbar spine as a result of the accident but submits that the claimant’s symptoms have abated over time such that any current symptoms are due to age-related degeneration. It disputes the claimed domestic assistance on the basis that it is not related to the accident and not reasonable and necessary and submits that the claimant’s accident-related injuries have resolved and do not necessitate the provision of ongoing domestic assistance.
The insurer refers to clinical notes in relation to post-accident treatment at Worker’s Doctors, attendances with Dr Eric Lim post-accident, the claimant’s reports that a Lebanese based neurosurgeon suggested that he required 24 sessions of physiotherapy, records from the Lebanese based physiotherapist indicating the claimant received 20 sessions of physiotherapy, an MRI scan of the lumbar spine on 21 March 2018 showing various disc protrusions, an MRI of the cervical spine on 27 June 2018 which revealed multi-level osteophytes and foraminal stenosis and the lack of clinical treating records after December 2017 and treating medical evidence at all after June 2018. The insurer submits that, consistent with the findings of Dr Keller, it ought to be accepted that the claimant’s injuries resolved in the acute post-accident period.
The insurer relies upon the reports of Dr Andrew Keller, occupational physician, dated
5 April 2018 and 2 September 2019, and his diagnosis of injuries, and his findings that the claimant was fit to perform any pre-accident domestic tasks he was tasked with at the time of his assessment of him.
The insurer disputes the recommendation of Dr Peter Conrad of six hours of domestic assistance from the date of the accident and on an ongoing basis, and submits that the need for such treatment is not reasonable or necessary or related to the accident, and relies upon the opinion of Dr Keller who found that any accident-related injuries had resolved and that any continuing symptoms reflect the claimant’s age-related degeneration.
The insurer submits that the claimant has no requirement for past or future domestic assistance as a result of his alleged accident-related injuries and that on the basis of the findings of Dr Keller, the claimant’s age-related degenerative changes are the primary cause of any disability, and accordingly that any domestic assistance is not necessitated as a result of the alleged accident-related injuries.
Annexure A9 - Domestic assistance in dispute[15]
[15] IB p 15.
The insurer requests that Medical Assessor Alach stipulates in respect of each of the time periods listed in this annexure, whether the services are, or are not, reasonable and necessary, and whether they are, or are not, related to injuries caused by the accident.
RE-EXAMINATION
The Panel considered that a re-examination of the claimant was required in order to determine the application for review. Initially a re-examination of the claimant by Medical Assessor Davidson was scheduled for 21 November 2022, however this was cancelled because the claimant did not comply with a direction to upload to the portal a bundle of documents upon which he relied on in the review by 14 November 2022, and the re-examination was rescheduled.
Medical Assessor Davidson assessed the claimant for the purposes of this review at his residence on 20 March 2023 commencing at 9:00am. The examination report is as follows:
“Mini-mental assessment
At the beginning of the assessment it appeared that Mr. Garcia was not understanding the conversation. He stated that he can understand good English. He denied requiring an interpreter. However, he acknowledged that he was quite deaf. His first language was Lebanese but he stated that he had good English. The assessment continued with Medical Assessor Davidson speaking loudly.
There was some concern from the Panel prior to the assessment about the presence of dementia. The mini-mental assessment was scored and the claimant achieved 30/30 on the assessment.
Presentation
Mr. Garcia was alone during the assessment.
Mr. Garcia was co-operative throughout the assessment. However, it was very difficult to get clear information from him about his pre-accident performance in daily tasks.
When initially asked as to what domestic tasks he did prior to the accident, he said he did not do any prior to the accident. However, when asked again, he stated that he did not remember. He was asked again about the garden, and he stated that he did not do any lawnmowing prior to the accident. He became frustrated at this point. He stated that he hit his head on the steering wheel in the accident and that the airbag burst into his chest and his head has not been the same since. He then got out all his medications and stated that he has memory loss and has headaches and other difficulties.
Medical Assessor Davidson then advised him that she was conducting this assessment because his solicitor has complained that the previous occupational therapist had not taken a proper assessment of his pre-injury activities. She told the claimant that his solicitor insisted on a full history of his activities prior to the motor vehicle accident and it was important that he attempts to remember this.
Medical Assessor Davidson informed the claimant that Medical Assessor Alach had noted in her decision that he never cooked prior to the accident. He denied that this was true.
Symptomatology
The claimant rated his back pain as 8/10 after walking for 20 minutes.
He rated his neck pain as 0/10 but he said that sometimes he does have neck pain.
He demonstrated a capacity to stand for 30 to 60 minutes. He referred to this as not having to stand totally still for that period of time but standing in the kitchen and doing tasks. This is referred to by occupational therapists as “dynamic standing”.
He described himself as going backwards since the accident.
He complained of numbness behind the left knee and in the calf muscle.
He stated that he moves around to relieve stiffness.
Grip strength assessment:
Medical Assessor Davidson used the dynamometer to assess the claimant’s effort in measuring this. He measured 15 kg on each hand on the first grip and then 15 kg again and then when the width of the grip was increased from 4.75 cm to 6 cm, he registered 10 kg. In the opinion of Medical Assessor Davidson he was exerting maximal effort.
Functional range of movement
The claimant’s upper limb range of movement was full and showed no signs of any restriction.
With regards to his lower limbs, the claimant demonstrated getting onto the floor and up again without any grimacing. He did this efficiently and effectively.
When sitting down, the claimant was unable to put either foot anywhere near the contralateral knee. When the FABER (Flexion Abduction and External Rotation) Test was conducted to test combined flexion, abduction and external rotation, the claimant could hardly achieve any active external rotation and abduction.
The claimant stated and he demonstrated how he puts on his shoes and does up the shoelaces by standing up and putting one foot on a chair. He then puts the shoe on the other foot by the same process.
The Quebec Back Pain Disability Scale (QBPDQ)
The Quebec Back Pain Disability Scale measures functional disability in patients with back pain. The claimant was asked to indicate the perceived difficulty associated with completing the physical activities in the table below. The rating is 0 for no difficulty, 1 for mildly difficult, 2 for moderate difficulty, 3 for severe difficulty, and 4 for unable to perform a task.
Activity domains affected by back pain measured by the QBPDQ scale:
(1) take food out of refrigerator
1
(11) sit in car for 1 hour
4
(2) climb 1 flight of stairs
4
(12) move a table
3
(3) get out of bed
1
(13) stand still for 30 minutes
4
(4) sleep for 6 hours
1
(14) pull a heavy door
3
(5) reach to a high shelf
0
(15) carry groceries (light)
1
(6) make a bed (not required)
2
(16) bend over the bath
5
(7) throw a ball
0
(17) walk several miles
5
(8) turn over in bed
1
(18) run 2 blocks
5
(9) put on socks
2
(19) lift 20 kg
5
(10) walk several blocks
1
(20) sit for 4 hours
5
Total
53/80
This is a score of 66%. Whilst it is acknowledged as being a relatively severe score, the tasks that are most difficult for the claimant to perform or that he is unable to perform are not included in the domestic tasks that the claimant completed prior to or since the accident. The climbing of one flight of stairs, which resulted in a high score of 4, is a task that is required in his home situation, but it is not required for him to do the cooking, washing up, laundry, gardening or shopping.
Back support belt
Mr. Garcia showed Medical Assessor Davidson the leather back support belt which he stated he wore all the time. The claimant stated that it avoided the sharp pain in his back. However, the belt was loose enough for Medical Assessor Davidson to put her whole hand down the front of with ease. The claimant stated that the back support belt had never been prescribed by anyone. In the opinion of the medical assessors on the Panel a back support which is that loose would have no therapeutic effect. Further, a back support is generally not prescribed for long term use because it deconditions the muscles in the back.
Exercises
Mr. Garcia continues with physiotherapy weekly and described this as massages. He stated that he had “never ever” been told to do any exercises and he had ”never ever” been told to maintain his activity levels. When it was suggested to the claimant that he should increase his activity level by walking around the park near his home several times per day, he rejected this. He stated that following the accident he did walk around the park every day and would often take a seat halfway. The surfaced path around the park was level and would be a maximum of 500 metres.
Clinical records
The clinical records from Workers Doctors[16], the general practice the claimant attended after the accident, were reviewed. It is noted that the claimant also attended the physiotherapist at that practice, Ryan Heuston, who consulted the claimant on 12 October 2017 and noted that a home exercise programme (HEP) was documented, Oswestry was 42% (which is relatively low). On the same day, Dr Kim of that practice recorded that it is “hard to do cleaning, vacuuming” and a plan to “exercise and stretch”. Similar data entries were recorded on clinical examination of the claimant at this practice on 22 and 29 September and 4 October 2017.
[16] IB p 97.
Treating doctors
Mr Garcia stated that prior to the motor vehicle accident, he rarely went to the doctor and did not have a general practitioner. Hence, he said that he attended the general practitioner recommended by his solicitor. He now has a general practitioner but still rarely goes to see him. Medical Assessor Davidson suggested that the claimant should go and have his left knee and calf muscle pain and sensory loss investigated, but this was rejected by him.
Family
Mr. Garcia has one daughter and two sons. Both sons live closer to the city. They come to see him at Eagle Vale. He gets on well with both sons. One of his sons has two sons.
Mr. Garcia’s daughter has four children aged twelve, nine, eight and six years old. He described his son-in-law as a “saint”.
The home environment
The claimant’s home is a two-storey dwelling on a small parcel of land. The bathrooms are all upstairs but there is a toilet and laundry downstairs. In the small living area upstairs, there was a single bed and on the top of it a rubber mattress.
There is a yard at the back with a paved area, artificial grass, some greenery and also a play area for the children with a slide. There is no lawn in the backyard. The front yard is small with a driveway to the garage and an area of lawn about five metres x five metres which is sloped. However, there was a car on this area at the time of the assessment and the claimant stated that the family use this area for car parking due to the number of adults living in the home.
The claimant denied that the area needed much lawn mowing. He showed Medical Assessor Davidson the lawnmower in the shed at the side of the house which was covered with other items. He stated this indicated it was not used and said that if anything was done to the front lawn it was by using a whipper snipper occasionally. He stated that because the cars are parked on the grass, the grass did not grow both before and after the motor vehicle accident.
The grassed area is small being about five metres x five metres and would take a maximum of fifteen minutes to mow.
He said that most of the gutters are very high and were never cleaned before or after the accident.
Pre-accident history
Medical Assessor Davidson asked the claimant to explain to her what domestic tasks he performed prior to the accident. He responded as follows:
· Generally he stated that he only did the minor things and the things that just needed doing.
· The claimant said that he cooked five nights per week for about one hour per night and always on weeknights). His daughter or son in law cooked the remaining two nights. He said that he cooked Spaghetti Bolognese or similar items. Sometimes he would cook a more complex meal. When Medical Assessor Davidson put to the claimant that this was inconsistent with Medical Assessor Alach’s report that he stated that his daughter did all the cooking, he responded by saying “Bullshit, I did it because my daughter was always at work and I did the cooking on weekdays and my daughter did it at the weekends.”
· He said that he did not clean up after those meals, this was done by the family.
· He never used the vacuum cleaner or did the heavy cleaning prior to the accident as there were paid cleaners for 2 hours per fortnight. The paid cleaners did the vacuuming and cleaned the bathroom and the windows. He was not sure whether the cleaners or the family changed their own bedsheets.
· He did some of the laundry to assist his daughter. He often brought it in from the clothesline. He was unable to be specific about how often he did this or how much laundry there was.
· He said that he shopped several times per week carrying loads of about four to five kilograms at a time. There is a Woolworths supermarket about 200 metres from the home and he walked to and from the shops with one bag in each hand. He said that the total weight of the bags was five to six kilograms. He then walked home. He bought fruit, vegetables, milk, bread, soap powder or whatever his daughter requested. He said that he did not do the large shopping alone but would go with his daughter and son-in-law to do this.
· He said he would assist with laundry but he was unable specify any hours or loads per week.
· He said that the gutters were never cleaned before or after the motor vehicle accident. He said that the gutters were too high for safety and they were not done.
· His answers when questioned in relation to the mowing of the lawn at the house were inconsistent. He initially stated that the lawn is not mowed. He then said that he never mowed the lawn, but when further questioned in relation to this, he said that he mowed it monthly, and later when asked again, he said that he might have mowed it once in the four years prior to the accident and that it might have been whipper-snippered occasionally but not often. He thought he might have done this every month, however the time to mow (or whipper-snip) the front yard was fifteen minutes and this was done a maximum of once per month.
· There are hedges in the property and the claimant acknowledged that he maintained those when they needed to be cut and estimated that realistically this took one hour per month.
· The claimant said that before the accident he put the garbage bins out on the road and he has resumed doing this task. He said that he might have not done it for a couple of months after the accident.
Assessment
· It was difficult to gain clear information reported about his past and current activities of daily living.
· On arrival Medical Assessor Davidson asked the claimant to show her the area where he slept upstairs, and he said that he now slept downstairs, partly because one of the children sleeps in the lounge upstairs and partly because he stated he cannot manage the stairs. When Medical Assessor Davidson insisted he show her the upstairs, he walked upstairs on alternative feet on alternate stairs with his stick, but he did not use the rails. When Medical Assessor Davidson said to the claimant that he did not seem to have any problem walking up the stairs, he said that that this was only an intermittent problem. When later during the assessment it became apparent that there was no shower downstairs, he agreed that he had to walk up and down the stairs to use the shower daily.
· The claimant showed Medical Assessor Davidson where he used to sleep on a mattress which was on the top of a single bed. He said that sleeping on the mattress on the floor was more comfortable than with it on the bed. He said that the mattress had always been removed during the day and placed onto the single bed where he would make it up with a single sheet underneath the mattress and one over it. He said that he did not tuck in the sheets. He demonstrated how he got onto and off the floor. He knelt down on both knees and then used his hands to roll over. He did the reverse getting up from the floor. He said that he now sleeps on the couch downstairs as the children are getting bigger and he does not want to impact on their lifestyle upstairs. He was not sure where the sheets were that he used downstairs as his daughter packed up the bedding which he said was just one sheet.
· The assessment took two hours and for ninety minutes of that period Mr. Garcia was either walking or standing. He did carry his walking stick but rarely used the walking stick. Medical Assessor Davidson walked with the claimant from the home to the Woolworths store and back again with only a three minute stop. Walking at a reasonable pace it took 10 minutes to walk each way for 300 metres. He did not indicate any signs of fatigue or limping or any need to sit down. After returning to the house, Medical Assessor Davidson continued to walk with the claimant to the park across the road. He then started to talk about fishing and other leisure interests.
· Medical Assessor Davidson and the claimant entered the shopping centre via a loading dock which had stairs. The claimant did complain of left knee pain and pain in his calf muscles going up the loading dock stairs and he said that this is what discourages him from sleeping upstairs.
· He said that he continues to do the shopping that he did prior to the accident and he takes at least one of the children with him and they push the shopping trolley back to his home. He buys the children an ice-cream and they all love going to the shopping centre with him. He said that this works well for the family.
· There was washing on the clothesline (six towels), and when asked whether he could bring in the washing (it was looking like raining), he did. He noted that some of the towels were a bit damp. He carried the towels over his shoulder. He had to reach high and use both hands to unpeg the washing but he was able to complete this in a totally normal manner. He completed this task with ease and without any pain.
· In terms of the cooking since the accident, the claimant said that he does some of the cooking but times have changed and the kids are older. He stated that he can still cook simple meals but times have changed and the kids are independent. In the opinion of Medical Assessor Davidson having conducted the assessment, there is no reason why the claimant could not resume all of the cooking he did prior to the motor accident.
· The claimant identified a major difference between static and dynamic standing stating that he could not stand still for long but could stand longer if he was able to move around. Most domestic tasks require dynamic standing. He demonstrated a capacity for dynamic standing for thirty minutes to bring in the laundry and make Lebanese coffee.
· He did do light cleaning before the accident and said that he can and does do this now.
Reported performance immediately after the accident
Mr. Garcia was asked about what he was able to do for the first three months after the accident.
He said that he still helped with some shopping and also with the meals and laundry. He reported that he has reduced the amount of these tasks that he does. He stated that he could stand for 30 minutes and make coffee and light meals after the accident.
Stripping and making the bed on the floor was not a weekly task as the mattress was lifted every day onto the bed in the claimant’s room. He stated that it was never really made properly, he just threw the bedding over it.
It was reasonable and necessary for the claimant to be provided with assistance with making his bed for the first month after the accident for 0.25 hours per day for seven days per week.
Conclusion
Medical Assessor Rosenthal diagnosed that the accident on 21 September 2017 caused soft tissue injuries to the claimant’s neck and back and determined that the physical injuries give rise to a need for domestic assistance from the date of the motor vehicle accident to the date of the MAS assessment causally related to the injury sustained in the subject accident.
Medical Assessor Davidson examined the claimant to assess the issue in dispute on this review - whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the motor vehicle accident to the date of the MAS assessment is reasonable and necessary in relation to the injuries sustained in the subject accident.
Medical Assessor Davidson re-examined the claimant and assessed that the following domestic assistance is reasonable and necessary in relation to the injuries sustained in the accident:
Reasonable and necessary domestic assistance
First 3 months after the accident
3 months to 6 months
21/9/2017 to 20/12/2017
21/12/2017 to 20/3/2018
Cooking
1 hour 5 days per week
30 minutes 5 days per week
Shopping
30 minutes 3 days per week
20 minutes 3 days per week
Light cleaning
30 minutes per week
nil
Laundry
1 hour per week
30 minutes per week
Gardening
15 minutes per week
15 minutes per week
Garbage bins
15 minutes per week
15 minutes per week
8 hours 30 minutes per week
4 hours 30 minutes per week
Reasonable and necessary domestic assistance
6 to 18 months after the accident
18 months to 2 years after the accident
21/3/2018 to 20/3/2019
21/3/2019 to 20/9/2019
cooking
10 mins 5 days per week
Nil
Shopping
10 minutes 3 days per week
Nil
Light cleaning
Nil
nil
Laundry
30 minutes per week
30 minutes per week
Gardening
15 minutes per week
15 minutes per week
Garbage bins
Nil
nil
2 hours and 5 minutes per week
45 minutes per week
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Limited v Keen[17] and Insurance Australia Limited v Marsh.[18]
[17] [2021] NSWCA 287 at [40], [41] and [45].
[18] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts Medical Assessor Davidson’s examination report in its reasons and adds the following further reasons.
The Panel’s task is to determine the following dispute:
(a) whether 0 to 6 hours per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the motor vehicle accident from the date of the motor vehicle accident to the date of the MAS assessment is reasonable and necessary in relation to the injuries sustained in the subject accident.
The Panel agrees with the opinion of Medical Assessor Rosenthal that the soft tissue injuries to the claimant’s neck and back caused by the accident are likely to have recovered within two years of the accident on 21 September 2017, and that any symptoms and disabilities thereafter are due to age-related degeneration and not the soft tissue injuries to the neck and back sustained in the accident for the following reasons.
An MRI scan of the lumbar spine on 21 March 2018 showed multilevel degenerative changes in the discs of the lumbar spine, paracentral herniation contacting the origin of the L4 nerve root with similar but less marked findings at L2/3, annular tears at L4/5 and L5/S1 and bilateral moderate foraminal stenoses at L5/S1.[19]
[19] CB p 30.
An MRI of the cervical spine on 28 June 2018 showed degenerative disc abnormalities and concluded that there was “multilevel disc osteophytes with multilevel foraminal stenoses and multilevel cord contact but no signal change or compression”.[20]
[20] CB p 33.
The claimant was 71 years of age when these radiological investigations were undertaken. In the opinion of the Panel, the findings and conclusions from the two MRI scans are consistent with age-related degenerative changes in the claimant’s lumbar and cervical spines. The Panel agrees with the opinion of Medical Assessor Rosenthal that the abnormalities found on these investigations are not related to trauma caused or aggravated by the accident. This is consistent with the opinion of Dr Keller,[21] and Dr Conrad provides no explanation as to why he is of the opinion that the MRI scan shows discal damage to the lumbar spine in the accident.[22] With respect to the opinion of Dr Conrad, the Panel medical assessors consider that, on the balance of probabilities, it is highly unlikely that a motor vehicle accident related soft tissue injury to the lumbar spine would cause traumatic change at three separate disc segments.
[21] IB pp 81-82.
[22] CB p 98.
For the reasons set out above, the Panel has determined that during the period from the date of the motor accident on 21 September 2017 to the date of the MAS assessment, the following domestic assistance is reasonable and necessary in the circumstances and relates to the injuries caused by the motor accident:
(a) 8 hours 30 minutes per week of domestic assistance from the date of the accident on 21 September 2017 for three months until 20 December 2017;
(b) 4 hours and 30 minutes per week of domestic assistance from 21 December 2017 for a further three months until 20 March 2018;
(c) 2 hours and 5 minutes per week of domestic assistance from 21 March 2018 until 20 March 2019); and
(d)
45 minutes per week of domestic assistance from 21 March 2019 until
20 September 2019, two years after the accident on 21 September 2017.
In the opinion of the Panel, any domestic assistance in addition to the above during the period from date of the accident on 21 September 2017 to the date of the MAS assessment is not reasonable and necessary in the circumstances and does not relate to the injuries caused by the motor accident.
CONCLUSION.
The Panel revokes the certificate of Medical Assessor Alach dated 24 March 2022. A replacement certificate is attached at the commencement of these Reasons.
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