Houchar v AAI Limited t/as GIO
[2023] NSWPICMP 176
•2 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Houchar v AAI Limited t/as GIO [2023] NSWPICMP 176 |
| CLAIMANT: | Ihab Houchar |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 2 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; multiple treatment and care disputes restricted to physical injuries; Panel satisfied ongoing symptoms due to psychiatric injury caused by motor accident; not satisfied that ongoing symptoms relate to physical injuries; claimant has not satisfied that physical injuries caused any future need for care or treatment; past need for care by reason of physical injuries found; Held – original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Treatment and Care Review Panel Assessment of Treatment and Care The Review Panel confirms the certificate of Medical Assessor Rosenthal dated 25 July 2022. |
REASONS
BACKGROUND
Mr Ihab Houchar (the claimant) was involved in a motor accident on 2 May 2017. Mr Houchar was a passenger in a vehicle which lost control and “flipped” after coming into contact with the insured vehicle.[1] The claimant alleges that he suffered injuries to the head, neck, back and left shoulder.
[1] Claimant’s bundle, p 73.
The insurer is liable to pay Mr Houcher any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The disputes before the Panel are whether:
1) Whether all physical injuries give a rise to a need for domestic assistance task from the date of the motor vehicle accident to the date of MAS assessment is causally related to the injury sustained in the subject accident.
2) Whether 0-15.5 hours per week (or anything in between) of domestic assistance task in relation to all physical injuries from the date of the motor vehicle accident to the date of MAS assessment is reasonable and necessary related to the injury sustained in the subject accident.
3) Whether a pool membership in relations to all physical injuries from the date of MAS assessment and ongoing for further six months is causally related to the injury sustained in the subject accident.
4) Whether a pool membership in relations to all physical injuries from the date of MAS assessment and ongoing for further six months is reasonable and necessary related to the injury sustained in the subject accident.
5) Whether all physical injuries give a rise to a need for domestic assistance task from date of MAS assessment and continue for a further 0-10 years is causally related to the injury sustained in the subject accident.
6) Whether 0-10.25 hours per week of domestic assistance task in relation to all physical injuries from date of MAS assessment and continue for a further 0-10 years is reasonable and necessary related to the injury sustained in the subject accident
7) Whether a Long-handled Reacher (replaceable annually) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
8) Whether a Long-handled Reacher (replaceable annually) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
9) Whether a Back-Eze cushion (replaceable annually) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
10) Whether a Back-Eze cushion (replaceable annually) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
11) Whether a Wheeling laundry trolley and basket (replaceable annually) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
12) Whether a Wheeling laundry trolley and basket (replaceable annually) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
13) Whether any use of Analgesica and anti-inflammatories in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
14) Whether any use of Analgesica and anti-inflammatories in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
15) Whether any use of Lyrica (for neuropathic pain) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
16) Whether any use of Lyrica (for neuropathic pain) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident
17) Whether 0-12 general practitioner (GP) consultations per year in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
18) Whether 0-12 GP consultations per year in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident
19) Whether 0-1 review per year with an orthopaedic surgeon in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
20) Whether 0-1 review per year with an orthopaedic surgeon in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
21) Whether 0-1 per annum of radiofrequency facet blocks in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
22) Whether 0-1 per annum of radiofrequency facet blocks in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
23) Whether a Lumbosacral binder (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
24) Whether a Lumbosacral binder (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
25) Whether a Merv-Basset car-seat (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
26) Whether a Merv-Basset car-seat (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
27) Whether a replacement wheat pack (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
28) Whether a replacement wheat pack (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
29) Whether an infra-red massage unit (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
30) Whether an infra-red massage unit (and any replacements required) in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
31) Whether a one-off of injection to the left shoulder from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
32) Whether a one-off of injection to the left shoulder from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
33) Whether a gym membership for a period of 0-10 years in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
34) Whether a gym membership for a period of 0-10 years in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
35) Whether a rehabilitation program in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
36) Whether a rehabilitation program in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
37) Whether a hydrotherapy session in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident.
38) Whether a hydrotherapy session in relations to all physical injuries from the date of MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary related to the injury sustained in the subject accident.
It is suggested that these are medical disputes within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
The Panel observes that the 38 disputes are framed in respect “of all physical injuries”. We have interpreted the questions to be limited to the symptoms caused by the physical injuries and not any physical symptoms as a sequalae of the psychiatric condition. Further, as is self-evident from the questions, the Panel is not required to assess the need arising from the psychological condition caused by the motor accident.
The Medical Assessor found that the claimant had developed a psychological injury which has caused ongoing symptoms. The Panel is also of the view that the claimant has an undoubted psychiatric condition resulting in physical symptoms.
A 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[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Rosenthal who issued a Medical Assessment Certificate dated 25 July 2022 (the Medical Assessment). The Medical Assessor found that the claimant suffered injuries to the spine, left shoulder and head and that only the soft tissue injury to the cervical spine and lumbar spine persisted.
The Medical Assessor held that there was a need for domestic assistance in the first six months following the accident. All other disputes were found to be not reasonable and necessary and not related to the accident.
THE REVIEW
The application for referral of the medical assessments to a review panel were made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were 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.[5]
[5] 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[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] 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.[7]
[7] Section 41(2) of the PIC Act.
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 matter solely based on the written application.[8]
[8] 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.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered.
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. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[10]. In Raina v CIC Allianz Insurance Ltd[11] 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.”
[10] See s 3B(2) of the CL Act.
[11] [2021] NSWSC 13 (Raina) at [65].
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction.
Pre-accident records
There are no relevant pre-accident records[12] although there are references to pre-existing various lower limb problems.
[12] See claimant’s bundle, pp 197-201.
Initial medical treatment following the motor accident
The ambulance record noted the claimant hit his head and complained of left sided neck pain.[13]
[13] Claimant’s bundle, p 629.
The emergency department discharge noted the motor accident causing head strike and pain in the left shoulder and neck.[14] The CT scan of the cervical and thoracic spine at hospital showed no acute pathology.[15]
[14] Claimant’s bundle, p 248.
[15] Claimant’s bundle, p 625.
The claimant consulted Dr Hanna, GP on 5 May 2017 reporting neck, back and left shoulder problems.[16]
[16] Claimant’s bundle, p 201.
Radiology
A CT scan of the lumbar spine dated 16 May 2017 showed a disc protrusion at L4/5 impressing upon the thecal sac.[17]
[17] Claimant’s bundle, p 215.
An MRI scan of the lumbar spine dated 26 March 2018 showed a small to moderate central to left sided disc protrusion at L4/5 causing mild left lateral recess stenosis.[18]
[18] Claimant’s bundle, p 647.
An MRI scan of the lumbar spine dated 7 December 2019 showed a left paracentral disc extrusion at L4/5 impinging the left L5 nerve root.[19]
[19] Claimant’s bundle, p 668.
On 20 December 2019 the claimant underwent an injection into the left L4/5 epidural space.[20]
[20] Insurer’s bundle, p 101.
An MRI scan of the lumbar spine dated 22 January 2020 showed a small central to left sided disc protrusion at L4/5 with probable irritation on the left L5 nerve root.[21]
[21] Claimant’s bundle, p 645.
General Practitioner
Dr Hanna, GP, provided a report dated 7 June 2022.[22] The GP noted that there was no relevant pre-existing condition and diagnosed the claimant with cervical and lumbar disc protrusions and “mechanical derangement” of the left shoulder.
[22] Claimant’s bundle, p 141.
Claim form
The claim form dated 14 June 2017 referred to the motor accident causing injuries to the head, neck, back and left shoulder.[23] The certificate dated 15 May 2017 completed by the GP confirmed the physical injuries and referred to a disc lesion at L4/5.[24]
[23] Claimant’s bundle, p 67.
[24] Claimant’s bundle, p 77.
Treating opinions
Dr Vijay Maniam
Dr Vijay Maniam, surgeon, provided a report dated 15 October 2019[25] noting the initial consultation occurred on 19 September 2018.
[25] Claimant’s bundle, p 104.
Dr Maniam opined that the motor accident caused a soft tissue injury to the cervical spine, impingement in the left shoulder with bursitis and dis protrusion at L4/5.
Dr Maniam provided a supplementary report dated 15 February 2021[26] which was in response to Dr Keller’s report dated 3 February 2020. The doctor opined that Dr Keller’s initial comment that the initial scans showed no disc injury was incorrect.
[26] Claimant’s bundle, p 15.
Dr Maniam opined that the CT scan of the lumbar spine dated 16 May 2017 showed a broad-based disc protrusion and the left shoulder ultrasound showed subtle thickening of the bursa.
Mr Huggins
Mr Huggins, treating psychologist, provided a report dated 12 April 2022 diagnosing the claimant with depression and anxiety.[27]
Qualified opinions
[27] Claimant’s bundle, p 138.
Dr Drew Dixon
Dr Drew Dixon, orthopaedic surgeon, provided a report dated 6 June 2018.[28]
[28] Claimant’s bundle, p 88.
The doctor diagnosed whiplash injury to the cervical spine with post traumatic stiffness, seat belt injury to the left shoulder with impingement but without a tear, low back pain with disc protrusion at L4/5 and L5/S1 with radicular complaint and post-traumatic stress disorder.
Dr Dixon provided a further report dated 10 December 2019[29] when he confirmed his previous diagnosis. He then assessed permanent impairment at 19%.
[29] Claimant’s bundle, p 7.
Dr Graham Vickey
Dr Vickery, psychologist, was qualified by the insurer and provided two reports dated 19 April 2018[30] and 9 March 2020.[31]
[30] Insurer’s bundle, p 51.
[31] Insurer’s bundle, p 67.
In his first report Dr Vickery diagnosed Post traumatic stress disorder which was in remission. The doctor then assessed impairment at 0%.
In the latter report, Dr Vickery opined that the claimant did not report any Post traumatic stress disorder psychopathology and that the appropriate diagnosis was Somatic Symptom Disorder.
An assessment report dated 1 January 2020 assessed the needs relating to the physical injuries.[32] The author opined that the claimant was suffering from injuries to the left shoulder, neck and back which had significantly impacted on the independent performance of the activities of daily living.
[32] Claimant’s bundle, p 23.
Dr Ishrat Ali
Dr Ali, psychiatrist provided a report dated 22 December 2017.[33] Dr Ali diagnosed the claimant with post traumatic stress disorder caused by the motor accident and assessed permanent impairment at 15%.
[33] Claimant’s bundle, p 78.
Dr Andrew Keller
Dr Andrew Keller, occupational physician, provided a report dated 3 February 2020.[34] The doctor opined that the initial low back scan showed no disc injury, but the latter ones showed L4/5 protrusion with impingement. He stated that it was “not clear” whether the disc protrusion relates to the accident.
[34] Insurer’s bundle, p 20.
Dr Keller opined that the claimant was unlikely to receive lasting benefit from physical therapies. The claimant may benefit from a supervised exercise physiology program “should he be motivated to attend”.
The doctor noted a report from Dr Sankaranarayan in September 2017 that the claimant had reduced his hours as a painter. He further observed callouses on the hands consistent with performing some form of work.
Dr Keller provided a further report dated 22 September 2021.[35] He opined that the claimant may have sustained a temporary soft tissue injury to the cervical spine. The doctor opined that the initial investigations of the lumbar spine following the motor accident showed minor lumbar disc degeneration without nerve root compromise and subsequent investigations showed possible irritation to the lumbar nerve roots. The subsequent pathology is unlikely to have been caused by the motor accident.
[35] Insurer’s bundle, p 81.
OTHER MEDICAL ASSESSMENT
In an assessment of permanent impairment dated 20 January 2019,[36] Medical Assessor Cameron noted ongoing symmetrically loss of range of motion in both the cervical and lumbar spine which was assessed as DRE Category I. The Medical Assessor found that the injuries to the head, left shoulder and thoracic spine had resolved.
[36] Insurer’s bundle, p 179.
Medical Assessor Howe-Synnott issued a certificate dated 6 March 2019.[37] The Medical Assessor diagnosed the claimant with post-traumatic stress disorder and assessed permanent impairment at 19%.
SUBMISSIONS
Claimant’s submissions dated 11 May 2020[38]
[37] Claimant’s bundle, p 121.
[38] Insurer’s bundle, p 13.
These submissions set out the extent of the claim for damages.
Claimant’s submissions dated 25 August 2022[39]
[39] Claimant’s bundle, p 1.
These submissions sought a review of the Medical Assessment.
The claimant submitted that he was denied procedural fairness as inconsistencies were not put to him.
He also submitted that relevant evidence was not considered including:
- the opinion of the treating orthopaedic surgeon, Dr Maniam (15 February 2021) particularly concerning the diagnosis of left shoulder rotator cuff injury and disc injury at L5/S1 as evidenced by the MRI scan dated 23 January 2020, and
- the opinion of Dr Drew Dixon contained in the report dated 10 December 2019.
Insurer’s submissions dated 7 July 2020[40]
[40] Insurer’s bundle, p 3.
The insurer noted the initial post radiology was unremarkable and there is an absence of attendance at the GP associated with the motor accident between 31 August 2017 and 9 January 2018. The insurer submitted there is no abnormal pathology.
The insurer stated that there was no need for domestic care after a period of 1-2 months. It referred to Dr Keller’s opinion who noted there was calluses on the claimant’s hands. Dr Keller also noted that the lumbar spine pathology deteriorated from that shown in the first post scan. Accordingly, he did not accept the L4/5 disc protrusion being related to the accident.
The insurer submitted that there was no need for assistance. given the orthopaedic specialists do not support the claim or otherwise do not explain their reasons.
The insurer noted that Dr Dixon and Dr Maniam supported some of the claims for future treatment but did not specify the duration.
Insurer’s submissions dated 20 September 2022[41]
[41] Insurer’s bundle, p 173.
These submissions were filed opposing the application to receive the certificate.
RE-EXAMINATION
Mr Houchar was medically examined by Medical Assessor Gorman on 19 April 2023. The examination report is as follows:
“History
Pre-accident medical history and relevant personal details
Mr Houchar is a 24-year-old male who was involved in a motor vehicle accident on 2 May 2017. He was 18 at the time of the accident.
He reported no pre-existing conditions.
At the time of the accident, he said he had left school in Year 11 and had not worked for about a year and then began an apprenticeship as a painter with his uncle. He had done a couple of days of work prior to the motor vehicle accident. He had also attempted to go back to work after the accident but found he could not continue helping his father with painting. He has not worked since that time.
He has been on Centrelink Jobseeker and has been looking for work.
He lives with his parents in a house in Guildford.
His sister aged 13 and brother aged 25 also live at home.
He used to go fishing and boxing. All of those activities have stopped since the accident.
History of the motor accident
He was a passenger in a Toyota Orient on the day the accident happened on 2 May 2017. He was in the backseat behind the front passenger seat. A car tried to merge into their lane. They were in the right hand lane, and it came from the left side when they were travelling at 60 kph causing their car to flip and it landed on its roof.
He said he climbed out a broken window.
Police and ambulance attended, and he was taken by ambulance to Westmead Hospital.
History of symptoms and treatment following the motor accident
He stated that he had low back pain, neck pain and left shoulder pain. He was given painkillers, morphine and a neck brace. He was kept overnight and had various x-rays. No other treatment was given.
He subsequently attended his GP, Dr Hanna. He did more x-rays, sent him for physiotherapy and also to a psychologist.
He had physiotherapy for about two months and was put on various medications.
In 2019, he had two injections into his back which gave him some short-term relief.
He was told that he had a bulging disc at L4/5. He had developed leg pain which comes and goes and generally stops around the calf.
Overall, his pains have continued. He was given Lyrica at one point which caused him side-effects and he stopped this.
He said the insurance company stopped paying for treatment and he could not afford to pay for any further treatment himself and apart from medication all other treatment stopped. He saw Dr Maniam, orthopaedic surgeon, early on after the injury but did not get any other specific treatment from Dr Maniam.
Details of any relevant injuries or conditions sustained since the motor accident
Apart from a significant psychological injury, there have been no other injuries or conditions since the motor accident.
Current symptoms
He said he gets pain if he sits for too long – it starts in the back and can ‘grab’ his legs.
The pain goes to his calves bilaterally and on the left sometimes to his toes.
He can get a tingling feeling in his left foot.
On occasions he wakes with neck pain. He has trouble sleeping on occasions as he needs to put his neck in a certain position at neck on the pillow.
Currently, he has his own room and does no particular household chores.
He said he used to assist hanging out the clothes before the accident but now his parents are doing all the household activities.
He said he used to mow the lawns prior to the accident but now his father is doing it.
He said that he ‘tried to do a bit of cleaning but it was hard because I get pain’.
He spends most of his time watching TV although he said he can drive and drive down to the shops locally. He takes his mother shopping for groceries.
He said he occasionally walks around the shops. He tends not to go out much socially.
He does not exercise. Prior to the accident, he used to play Oz-Tag.
He says that he does not leave the house except he said if ‘dragged out’ by the family.
Current and proposed treatment
He takes Voltaren one a day. He takes Panadeine forte two in the afternoon. He takes Mirtazapine daily, Nurofen and Panadol when required.
He is not having any physical treatment.
He sees his GP fortnightly to get prescriptions.
He is not being treated any more by Dr Maniam. The epidural injections he had in 2019 and early 2020 gave him relief for approximately one week only.
He is still getting psychological treatment under Medicare.
In terms of assistance and devices, he said he does use a back cushion for sitting but he said he does not think it makes much difference to his symptoms.
Clinical Examination
General presentation
He weighed 45.8kg and was 164cm tall.
He was very ‘flat’ and depressed in his affect.
Cervical spine (cervicothoracic)
There was no spasm or guarding although he reported tenderness in the left upper trapezial region.
Neck movements were reduced to three quarters normal in rotation the left and right, in flexion, in extension and in lateral flexion. There was no asymmetry of neck movement.
There were no neurological deficits in the upper limbs. Muscle power and tone were normal. Reflexes were normal and equal and there were no sensory changes reported. There was no anatomically localised muscle weakness.
Lumbar spine (lumbosacral)
He reported some tenderness on the left side around the L3/4 region but there was no spasm or guarding.
All lumbar movements were self-restricted by approximately one-quarter in all directions. There was no asymmetry of lumbar movement.
He could get up on his heels and toes and perform a squat. His straight leg raise was 80° on the right and 70° on the left. He reported some left hamstring discomfort on left straight leg raise.
Upper extremity
He indicated the majority of the pain was over the left trapezius which was tender.
He had a full range of shoulder, elbow and wrist movements. No abnormality was found at the left shoulder. Impingement was negative. There was no crepitus or instability at the left shoulder joint. The right shoulder was also normal to examination. There was no wasting in the upper extremities.
Lower extremity
There was a full range of hip, knee and ankle movements on both sides. There was no lower extremity wasting. Muscle power and tone were normal in the lower limbs. Reflexes were equal and normal. There were no dermatomal sensory changes present.
Comments on consistency
He was cooperative and consistent. There were no pain behaviours and inconsistencies unlike those described by previous examiners.
Assessment
Mr Houchar has significant psychological problems after the motor accident which mean that he is unmotivated for exercise and for getting out of the house.
He has multiple physical symptoms perpetuated by this inactivity and deconditioning but no physical impairment.
Rehana Memon in her OT report felt that the accident and injuries had impacted on the ‘independent performance of activities of daily living and personal self-care, particularly domestic and general home-based tasks’.
However, Catherine Corkhill (Occupational Therapist) noted on 2 October 2020, his psychological condition resulted in non-engagement in physical activities and activity of daily living even though he had physical capacity. I agree with this assessment.
Therefore, the items requested to assist at home are not necessary as he has capacity – he is just not motivated to do tasks.
He will not be helped by radiofrequency blocks or further injections. His physical symptoms will not be helped by changes in medication. He does not need Orthopaedic Surgeon reviews.”
REASONS
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 Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
[42] [2021] NSWCA 287 at [40], [41] and [45].
[43] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessor’s examination report and adds the following further reasons.
We interpret questions 3-38 where it refers to the “MAS assessment” as that undertaken by Medical Assessor Gorman as this is the relevant medical assessment for the purposes of the Panel’s decision.
For the reasons provided by Medical Assessor Gorman, we are not satisfied that the claimant has ongoing symptoms from the physical injuries caused by the motor accident requiring any need for treatment. The need arises from the claimant’s psychological condition. To the extent that the claimant relies on past medical opinion, the Panel notes that we are assessing at the present time. The prior opinions are at least two years (Dr Maniam) and up to four years (Dr Dixon).
Accordingly, the claimant cannot satisfy the causal relationship between the motor accident and the need for the various items/treatments on a future basis as set out in questions 3 through to 38.
The outstanding issues are questions 1 and 2.
It was accepted by the insurer, and we are satisfied that the motor accident caused physical injuries which gave rise to a need for domestic assistance. This was also the conclusion reached by Medical Assessor Rosenthal. Accordingly, the answer to question 1 is yes.
In respect of question 2, Medical Assessor Rosenthal noted that the need for past domestic assistance will need to be assessed by an Occupational Therapist. The Panel has the power, pursuant s 63(4) of the MAC Act, to either confirm the certificate of assessment or revoke and issue a new certificate.
The Panel agrees with the decision made by Medical Assessor Rosenthal with respect to question 2.
CONCLUSION
For these reasons the Medical Assessment Certificate dated 25 July 2022 is confirmed.
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