Insurance Australia Limited t/as NRMA Insurance v Deakin

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Deakin [2024] NSWPICMP 297
CLAIMANT:	Paul Deakin
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	14 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 11 October 2017; Medical Assessor (MA) McGrath determined that the injury to the right wrist gave rise to a whole person impairment (WPI) of 15% and the proposed treatment for 3 cortisone injections was reasonable and necessary; the insurer submitted that the Medical Assessor failed to provide proper reasons in support of a causation finding; the Medical Review Panel conducted an examination and considered the issue of causation according to the Guidelines; the Panel determined permanent impairment of the right wrist equated to a total WPI of 18%; the Panel further held the proposed treatments, past and future domestic assistance relating to the injury to the right wrist were caused by the accident and were reasonable and necessary; Held – the certificate of MA McGrath was revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor David McGrath, dated 23 September 2023. Determination with respect to whole person impairment 2. The Review Panel substitutes the determination and certifies that: (a) the right wrist -soft tissue injury with subsequent fusion which was caused by the motor accident, gave rise to a whole person impairment of 18%. Determination with respect to the treatment dispute 3. The Review Panel substitutes the determination and certifies that the following treatment disputes were caused by the accident and are reasonable and necessary: Treatments (a) three cortisone injections to right wrist as proposed by Dr Bryce Meads is causally related to the injury sustained in the subject accident and, (b) three cortisone injections to right wrist as proposed by Dr Bryce Meads is reasonable and necessary in relation to the injury sustained in the subject accident. Past domestic assistance (a) the need for domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is causally related to the right wrist injury sustained in the subject accident and, Future domestic assistance (a) the need for domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident; (b) 0-1 hours per week of domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident; (c) the need for domestic assistance (painting the internal of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident; (d) painting the internal of the claimants house every 10 years from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident; (e) the need for domestic assistance (clearing the roof and gutters of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident; (f) clearing the roof and gutters of claimant’s house once a year from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident; (g) the need for domestic assistance (regyprocking a bedroom and hallway) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident; (h) regyprocking a bedroom and hallway (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident; (i) the need for domestic assistance (pulling out carpet layers to make ready for new carpet) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident and, (j) pulling out carpet layers to make ready for new carpet (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident.

STATEMENT OF REASONS

INTRODUCTION

On 11 October 2017, Paul Deakin (the claimant) and his wife, were sitting outside a coffee shop in the car Mr Deakin had been driving, drinking coffee, when the vehicle was hit by a truck which had already side-swiped several other vehicles. The truck hit the rear of their car and spun it forward, with a secondary impact to the right side of the car. The driver of the truck ran from the scene but was apprehended by police.
Ambulance and police were in attendance and Mr Deakin was taken to John Hunter Hospital, by ambulance.
Mr Deakin has brought a claim for common law damages for the injuries he sustained in the motor accident under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages for Mr Deakin under the MAI Act.
A medical dispute between the claimant and the insurer has arisen in regard to:
(a) the degree of permanent impairment under s 58(1)(d) of the MAI Act;
(b) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances under s 58(1)(a) of the MAI Act, and
(c) whether any such treatment relates to the injury caused by the motor accident under s 58 (1)(b) of the MAI Act.
This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor David McGrath for assessment.
On 23 September 2023, Medical Assessor McGrath determined that Mr Deakin did have a whole person impairment (WPI) of greater than 10%.

REVIEW PROCEDURE

Mr Deakin sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Review Panel.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct a review of the Medical Assessment.
The review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 13 February 2024, the Review Panel informed the parties that it considered a re-examination of Mr Deakin was required. Arrangements were made for Mr Deakin to be re-examined by Medical Assessor Lahz and Medical Assessor Couch on 18 March 2024 by audio-visual Teams.

LEGISLATIVE FRAMEWORK
General provisions

15.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

Mr Deakin’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor McGrath examined Mr Deakin on 19 September 2023, and issued a certificate under s 61 of the Motor Accidents Compensation Act 1999 (the Act).
Medical Assessor McGrath was referred the following injury for assessment:
(a) wrist – injury to right wrist.
The following treatment disputes were referred by the Commission for assessment:
Treatments
(a)   whether three cortisone injections to right wrist as proposed by Dr Bryce Meads is causally related to the injury sustained in the subject accident and,
(b)   whether three cortisone injections to right wrist as proposed by Dr Bryce Meads is reasonable and necessary in relation to the injury sustained in the subject accident.
Past domestic assistance
(a)whether the need for domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is causally related to the right wrist injury sustained in the subject accident and,
(b)whether 0-1 hour per fortnight of domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident.
Future domestic assistance
(a)   whether the need for domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(b)   whether 0-1hours per week of domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(c)   whether the need for domestic assistance (painting the internal of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident.
(d)   whether painting the internal of the claimants house every 10 years from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(e)   whether the need for domestic assistance (clearing the roof and gutters of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(f)    whether clearing the roof and gutters of claimant’s house once a year from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(g)   whether the need for domestic assistance (regyprocking a bedroom and hallway) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident;
(h)   whether regyprocking a bedroom and hallway (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(i)    whether the need for domestic assistance (pulling out carpet layers to make ready for new carpet) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident, and
(j)    whether pulling out carpet layers to make ready for new carpet (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident.
The Medical Assessor noted the parties’ submissions at [3]-[4].
Medical Assessor McGrath took a pre-accident history at [9].
Mr Deakin was 70 years of age.
Mr Deakin had a year 10 education followed by training as an electrician. He worked for a local council for 10 years before receiving a redundancy. He entered the mining industry where he worked for the next 38 years. His last years were more multi-tasking rather than engine maintenance. Generally, he worked a 12-hour shift from either 7.00am to 7.00pm or 7.00pm to 7.00am.
He injured himself at work and received a medical redundancy in 2015. He had not returned to work since.
There was no previous history of motor vehicle accidents, falls or broken bones.
Mr Deakin told Medical Assessor McGrath the following medical history:
(a)   bilateral osteotomies for his left and right knees;
(b)   metatarsal plate for his 2nd toe;
(c)   atrial fibrillation;
(d)   left and right shoulder reconstructions;
(e)   surgery to the left wrist, and
(f)    neck injury.
At [10] Medical Assessor McGrath took a history of the motor accident:
“Mr Deakin was involved in an MVA on 11 October 2017. He was driving an Isuzu SUV with his wife at the time of the accident. They were sitting outside a coffee shop having just purchased coffees when they were hit from the rear by a stolen truck which had already side-swiped several other vehicles. The truck hit the rear of their car and spun them forward with a secondary impact to the right side of the car. The driver of the stolen truck ran from the scene of the accident but was later apprehended by police and has spent several years in jail. Ambulance and police were in attendance…Mr Deakin was taken to John Hunter Hospital by ambulance. His wife was taken to hospital by helicopter.”
Medical Assessor McGrath document the history of symptoms and treatment following the accident at [11]:
“Mr Deakin was aware of pains about the right shoulder, neck, right hip and right knee. These pains resolved over a couple of weeks. He also had significant swelling develop about the right wrist and thumb area (pictures observed). He returned to see his GP, Dr Brown, who took some further x-rays and prescribed some physiotherapy which largely consisted of a wrist brace. After several months, Mr Deakin found that he was not recovering. Every time he removed the brace he felt weak and painful. He was referred to Dr Meads who had previously operated on his left wrist. He performed an arthroscopic procedure to the right wrist with uncertain benefit. He was again placed in a brace which remained ineffective. Dr Meads ultimately proceeded to a carpal tunnel fusion on 6 April 2018.”
At [13] Medical Assessor McGrath noted Mr Deakin was relatively uncomplaining about any pain. Mr Deakin was very tender over the right carpal tunnel and this was associated with some pins and needles. The right wrist itself had virtually no movement consistent with the fusion procedure.
Medical Assessor McGrath conducted a clinical examination which is set out at [15]:
“General presentation
Upper Extremity
Both wrists were carefully examined. He has a full and complete range of left wrist movements.
The right wrist is fused in all dimensions. He has also lost a minor amount of supination. The active range of motion of the joints was observed, measured by goniometer and tabulated.
Skin Scarring (TEMSKI)
Mr Deakin has a 13cm scar on the dorsum of the right forearm. It is clearly visible but with no tethering of underlying structures. No suture marks were visible. The scar is occasionally irritating, and he has applied cream from time to time.
With respect to TEMSKI criteria:
1. He is barely conscious of scarring
2. There is good colour matching
3. There are no trophic changes
4. Suture marks are not visible
5. Location is not clearly visible (by others) with usual clothing
6. He is able to easily locate the scars (visibility by self-looking)
7. No contour effects
8. No effect on any ADL
9. Generally, no treatment is required
10.No adherence Under the principle of ‘best fit’ a 0% WPI is appropriate.”

No radiological and medical imaging was brought to the assessment with Medical Assessor McGrath.
At [20] in causation and reasons, Medical Assessor McGrath discussed that the exact nature of Mr Deakin’s soft tissue injury was unknown, but an injury was documented. The fusion itself was a medical judgement, directly arising from the motor vehicle accident. There were no plans for a wrist fusion, prior to the motor vehicle accident. There was no doubt that he had underlying arthritis, which was the target of the procedure.
Medical Assessor McGrath concluded that the following injury was caused by the motor accident:
· right Wrist - soft tissue injury with subsequent fusion.
Medical Assessor McGrath set out in his reasoning a permanent impairment table:

Body Part or System AMA Guides/ Guidelines References (chapter/ page/table) Permanent (YES/NO) Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident

Right Upper Extremity Right Wrist MAPIG p13- 16 AMA4 Chap 3.1 YES 18% 3% 15%

Skin Surgical Scarring MAPIG p57- 59 T18 TEMSKI AMA4 T2 p280 YES 0% 0% 0%

Medical Assessor McGrath commented on pre-existing impairment and that that there was no accurate information about his wrist prior to the motor vehicle accident. The contralateral uninjured left wrist did have a range of movement (ROM) impairment (3% WPI) due to arthritic changes. Given the right wrist fusion was for underlying arthritis, he was confident that an impairment existed of the same magnitude as the left wrist. The procedure on the left in 2004, was unlikely to have a material change to ROM observations.
Medical Assessor McGrath concluded that the degree of permanent impairment caused by the motor accident was 15% WPI.
In treatment and care – causation at [25], Medical Assessor McGrath commented that:
“All of the following are causally related to the wrist fusion. He was not seeking any treatment prior to the MVA. He reports full functionality for domestic and household maintenance tasks prior to the MVA.”
Medical Assessor McGrath further concluded that the following treatment and care related to the injuries caused by the motor accident:
Treatments
(a)   three cortisone injections to right wrist as proposed by Dr Bryce Meads is causally related to the injury sustained in the subject accident.
Past domestic assistance
(b)   the need for domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is causally related to the right wrist injury sustained in the subject accident.
Future domestic assistance
(c)   the need for domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(d)   the need for domestic assistance (painting the internal of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(e)   the need for domestic assistance (clearing the roof and gutters of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(f)    the need for domestic assistance (regyprocking a bedroom and hallway) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident, and
(g)   the need for domestic assistance (pulling out carpet layers to make ready for new carpet) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident.
Medical Assessor McGrath determined that the following treatment and care was reasonable and necessary in the circumstances:
(a) three cortisone injections to right wrist as proposed by Dr Bryce Meads is reasonable and necessary in relation to the injury sustained in the subject accident.

EVIDENCE BEFORE THE PANEL

The evidence before the Review Panel consisted of:
(a) Mr Deakin’s indexed and paginated bundle of documents uploaded on the Commission’s portal on 7 December 2023 (Mr Deakin’s documents), and
(b) the insurer’s indexed and paginated bundle of documents uploaded on the Commission’s portal on 18 December 2023 (insurer’s documents).

REVIEW OF THE EVIDENCE
Report of Dr David Mathers (rheumatologist)

In a report dated 27 September 1994 Dr Mathers noted that Mr Deakin felt sudden onset of severe pain in his wrist. Examinations revealed tenderness around the right wrist however his movements were found to be normal only with pain and extremes of movement. Dr Mathers stated he believed there was some degenerative changes and a loss of longitudinal arch.
Dr Mathers further commented:
“The reason fer his referral relates to his right wrist. In March of 1994 he was ramsetting a saddle around a hopper bin and crimping with a pair of pliers. He felt the sudden onset of quite severe pain around the dorsoradial aspect of his wrist. About one month later he slipped and grabbed an RSJ with his right hand and once again experienced quite severe pain around the wrist.
These pains have been more or less persistent since that time. They are aggravated by movement of the wrist, particularly· any sharp, sudden movement or movement against any resistance.
He has been wearing a wrist brace over the last six weeks and has also attended for some physiotherapy. He finds both of these things of partial help.
He has had x-rays performed which are normal.”

NSW ambulance report

The NSW ambulance report recorded a multiple number of people were injured and Mr Deakin initially urged the ambulance officers to assist his wife. Subsequently, when more resources attended, it was noted that Mr Deakin had been in a parked car when hit from the rear. He had a Glasgow Coma Scale of 15 and the was taken by ambulance to the John Hunter Hospital.

Reports of Dr Bryce Meads

In the records of Dr Bryce Meads dated 2004 and 2005, Mr Deakin was treated for a left wrist injury.
On 9 July 2004, Dr Meads reviewed Mr Deakin and commented:
“On the 10^{th of} May 2004 he was putting hydraulic fittings together pushing and twisting when he, suddenly developed pain on the dorsal aspect of his left wrist. He initially iced this and bandaged it, but it became worse over the next few days. He now reports continued aching pain with exacerbations, particularly with twisting and loading movements…On examination this man has no swelling over his left wrist but some tenderness over the scapholunate ligament region. He has flexion of his wrist to 60°, extension to 60°, radial deviation to 20° and ulnar deviation of 25°. He has full pronation and supination. He has a positive Kirk Watson's test but a negative TFCC abutment test and no mid carpal instability·.
His x-rays demonstrate a widened scapholunate ligament junction consistent with a scapholunate ligament tear.”
On 18 August 2004, Mr Deakin underwent an arthroscopy of the right wrist.
On 12 November 2004, Dr Meads commented:
“He is doing well with his rehabilitation. He is now three months post scapholunate ligament reconstruction.”
Dr Meads recorded in a report of 6 April 2005 that the claimant only occasionally had discomfort in his left wrist after shovelling or heavy lifting.
Following the subject accident, Dr Meads noted that there were significant degenerative changes in his right wrist however its function had changed significantly following the motor vehicle accident.
Dr Meads made the following report on 1 December 2017, after examining Mr Deakin:
“Thank you for referring Tony who is a previous patient of mine from almost ten years ago. He presents as a 64-year-old right hand dominant man. He has previously had a left scapholunate ligament reconstruction in 2008. He has had an excellent result from this. He told me that he had some pain within his right wrist prior to a motor vehicle accident and this was part of a workers compensation claim.
He was involved in a motor vehicle accident on the 11th of October 2017 when he was parked in a gutter when a truck hit his car from behind at 100km/h. It pushed his car up into the side of a pub and then came back down they were hit again on the right side. He sustained injuries to his neck, hip, shoulder, knee and wrist. He was seen at the John Hunter Hospital as part of a trauma call. He did not have any surgery on his right wrist at that time. Since the accident he has increased pain in his right wrist. He has had difficulty cleaning his teeth and wiping his bottom and the pain is constant. He has lost a significant amount of grip strength and now is unable to use his wrist without a splint.
Examining him today he has some swelling over the dorsal radial aspect of his right wrist… He has normal sensation in his fingers. He has significant pain with a Kirk Watson's manoeuvre with obvious crepitus of his wrist. He has some minor discomfort with a TFCC abutment test. He is able to make a full fist.
His x-ray pre-injury show some degenerative changes within his wrist with a probable SLAC II up to a SLAC IV wrist. There is some calcification within the TFCC and there is some cystic change within die lunate and triquetrum. He has had a CT scan also, which has demonstrated CMC joint arthritis in his left thumb and again significant changes in the radiocarpal joint particularly in the radioscaphoid joint. The head of the capitate may well be preserved as long as the radiolunate fossa.
My assessment is that he has had aggravation of the degenerative changes of his right wrist. His symptoms have changed significantly since he was injured in the car accident. I have recommended an arthroscopy and debridement along with cortisone injections into his thumb and wrist. This will be both prognostic as well as therapeutic. I have recommended performing this. “
On 22 January 2018, Dr Mead preformed an arthroscopy and debridement of the right wrist with cortisone injection into CMC joint, right thumb and radiocarpal joint.
On 2 February 2018, Dr Mead examined Mr Deakin and reported:
“Tony still has some discomfort in his left wrist after the arthroscopy and debridement… I think that a four-corner fusion is the next stage as well as post interosseous nerve resection.”
On 6 April 2018, Dr Mead preformed a four-corner fusion with scaphoid excision and posterior interosseous nerve resection right wrist.
On 12 December 2018, Dr Mead wrote:
“Tony had a CT scan. This shows that the four-corner fusion hasn’t fully healed but he has degenerative change in the radiculonate surface. This is quite significant… There is some mild pisotriquetral joint arthritis.”

Dr Paul Miniter, 8 March 2021

Mr Deakin was examined by Dr Paul Miniter on 8 March 2021. Dr Miniter advised that he could not see any evidence that he had suffered a serious injury to his right wrist in the motor vehicle accident. In relation to whole person impairment this was assessed at 18% and 50% deducted for pre-existing problems which resulted in a 9% whole person impairment figure.

Workers’ compensation claim dated 25 August 2021

In a previous workers compensation claim dated 25 August 2021, the court found that Mr Deakin’s injuries to his right arm was at 30% loss, with 50% caused by work and 50% caused by the motor vehicle accident. This award affirmed the findings of Dr Miniter noting pre-existing problems make up 50% of the claimant’s injuries.

CT right wrist

A CT scan of the right wrist was conducted on 20 May 2020. The findings were:
“An arthrodesis plate transverse the radius, carpus and base of third metacarpal. There is osseous fusion across the radiolunocapitate articulations. There is incomplete fusion across the third CMC joint.
The scaphoid appears to have been resected. Background severe first CMC joint and ulnocarpal joint degenerative changes are noted.
There are no hardware complications identified.”
A further CT was competed on 3 November 2020, which described:
“Comparison made with 20/5/2020 CT. Previous arthrodesis hardware has been removed. Bony fusion is again noted involving distal radius, lunate and capitate, also near complete fusion involving the hamate. The scaphoid is difficult to identify, ?resection, ?previous trauma with avascular necrosis. The triquetrum also appears to have bony volume loss and is orientated more superiorly and laterally, mostly fused with the hamate and capitate. There is severe distal radioulnar joint degeneration. No significant ulnar variance. Prominent subchondral cyst is noted at the base of the ulnar styloid process with cortical irregularity adjacent to the expected region of the triangular fibrocartilage complex. There is however no significant chondrocalcinosis throughout this region. The pisiform also has irregular bony outline however this appears chronic. No subluxation features. Advanced joint degenerative changes are also noted throughout the first carpometacarpal, lesser degree other carpometacarpal as well as first metacarpophalangeal articulation… No acute appearing bony abnormality or destructive bone change.”

Statement by Paul Deakin on 24 May 2021

Mr Deakin provided a written statement in reply to the report of Professor Paul Miniter. He said:
“The outcome of my wrist which has been a very frustrating journey over the last three and a half years, going from having a fully functional wrist before the accident, and having an everyday normal life, to having the accident and all that changing not because of the surgery but because of the pain and weakness in my wrist brought on by the accident and before I had any surgery.”
Mr Deakin further provided a list of the everyday tasks he had difficulty completing.

5 September 2021 report of Dr Hopcroft.

Dr Hopcroft examined Mr Deakin on 15 September 2021. He concluded a full wrist fusion with no movement in any plane. Calculated 18% WPI. He accepted pre-existing arthritis.
He commented in his report:
“Following his catastrophic motor vehicle accident of 11 October 2017, he continued to have significant ongoing problems with his right wrist, in spite of the early intervention of Dr Bryce Meads, dedicated hand surgeon, who undertook arthroscopy of his right wrist on 22 January 2018 for the significant pain he had in that wrist joint from the time of the motor vehicle accident, and not before, and ultimately undergoing a four comer carpal fusion operation involving scaphoidectomy on 6 April 2018.
He had an x-ray of his right wrist joint performed two months prior to my review of him on 15 August 2018, on 22 June 2018, with that x-ray confirming:
There is absence of the scaphoid with bony fragments seen in its expected location. Internal fixation of the distal and proximal carpal bones noted. There is moderate degenerative disease of the first carpometacarpal joint. There is mild degenerative disease of the distal radioulnar joint. There is calcification of the triangular fibrocartilage complex (TFCC).”
Dr Hopcroft further commented:
“As he continued to have significant pain in his wrist joint following that procedure the decision was taken for him to progress to radiocarpal fusion surgery on 6 June 2019. I believe his future treatment will involve yearly reviews by his treating hand surgeon, Dr Bryce Meads, as he may occasionally come to require hydrocortisone and local anaesthetic injections into those joints surrounding his fusion, now under increased pressures of increased activity.
He requires regular review by his treating general practitioner on at least a second monthly basis for ongoing pain medication. I believe both those treatment requirements are reasonably necessary as a result of his motor vehicle accident.”

SUBMISSIONS

Insurer’s submissions

The insurer provided written submissions dated 30 October 2023 in respect of the review. The submissions are summarised below.

Error 1: failing to provide proper reasons in support of causation finding

The insurer submitted that the Medical Assessor did not set out proper reasons in support of his causation findings for the following reasons:
(a) whilst setting out a diagnosis of a "Right Wrist fusion" as a result of the accident, later in the Certificate the Medical Assessor stated that underlying arthritis (i.e. a pre-existing degenerative condition) was the "target of the procedure", and within a couple of pages the Medical Assessor stated that "the right wrist fusion was for underlying arthritis". It is not apparent how the Medical Assessor arrived at his finding that the injury which the claimant sustained as a result of the accident was a "Right Wrist fusion" in circumstances where he clearly found that such surgery was related to the claimant's "underlying arthritis" (i.e. a pre-existing degenerative condition). The Medical Assessor's reasoning was inconsistent and incongruous, and
(b) the Medical Assessor appeared to have accepted that Mr Deakin sustained a soft-tissue injury to his right wrist as a result of the accident, but he did not set out the nature of such injury. In circumstances where there was material before the Medical Assessor which evidenced that the claimant had a history of problems affecting his right wrist, the Medical Assessor was obliged to say whether the accident had resulted in some new discrete injury to the right wrist (and if so the nature of such), and/or whether it had resulted in some aggravation of an old injury to the right wrist (and if so the nature of such).

Error 2: upper extremity impairment (UEI) percentages in respect of right wrist movements do not add up

The insurer submitted that the Medical Assessor recorded 0% UEI% in respect of right wrist flexion, extension, radial deviation, and ulnar deviation (third column of middle 4 rows in table above). However, the Medical Assessor then set out a "Combined UEI%" of 30%, notwithstanding the fact that the UEI% in the rows above combined to produce a total of 0%. It was inexplicable as to how the Medical Assessor arrived at a combined UEI% of 30% in respect of the right wrist in the table which appeared on pages 7-8 of the Certificate. There was plainly a mistake in the UEI percentages set out in the Certificate.

Error 3: the Medical Assessor measured elbow movements and took into account such movements when calculating UEI without having found an injury to the right elbow

The insurer submitted that the Medical Assessor did not find any injury to the right elbow referable to the accident which would justify the Medical Assessor taking into account loss of motion in that joint when assessing UEI.
The Medical Assessor erred in taking into account any restricted range of movement in respect of the right elbow joint in circumstances where the claimant does not allege an injury to the joint and the Medical Assessor did not make a finding of any injury to the joint as a result of the accident.

Error 4: failing to comply with clause 1.51 of the Permanent Impairment Guidelines and given proper reasons for approach to assessment of permanent impairment of right wrist by using left wrist as a baseline and by failing to apply clauses 1.31 - 1.32 of the Permanent Impairment Guidelines

Applying the approach set out in clause 1.51 of the Permanent Impairment Guidelines obliged the Medical Assessor to:
(a)   be satisfied that the uninjured joint (i.e. the left joint) had a less than average mobility;
(b)   be satisfied that there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the injury, and
(c)   explain the rationale for his decision to use the "contralateral uninjured joint", i.e. the left wrist, as a baseline.
The insurer submitted that the Medical Assessor's reasons in respect of the second and third matters referred to above are deficient and do not sufficiently comply with clause 1.51 of the Permanent Impairment Guidelines.
The insurer submitted that in assessing permanent impairment in respect of the right wrist, the Medical Assessor failed to apply clauses 1.31-1.32 of the Permanent Impairment Guidelines.

Claimant’s submissions in reply

Mr Deakin, through his lawyers, provided written submissions dated 20 November 2023 in respect of the review. The submissions are summarised below.
The claimant submitted that whilst the underlying arthritis was a target of the procedure, it is apparent that the Medical Assessor was of the opinion that the surgery was undertaken solely because of the motor vehicle accident i.e., had the motor vehicle accident not occurred the surgery would not have been undertaken. In the circumstances, it is submitted that contrary to the insurer’s submission, the Medical Assessor’s reasoning is not inconsistent and incongruous.
It is submitted that lack of clarity does not constitute error and in such circumstances the appropriate course is to refer the matter back to the Medical Assessor to seek clarification, and if after doing so an error is apparent it would then be appropriate to refer the decision for review.
In the circumstances it is submitted that the correct course of action is to request the Medical Assessor to review his certificate in light of the insurer’s submissions.
The claimant submits that the Medical Assessor has made it clear the surgery would not have been undertaken but for the motor vehicle accident. In the circumstances, the fact that the Medical Assessor has not identified the nature of the discreet injury is irrelevant. It is sufficient for the Medical Assessor to have accepted that the surgery would not have been undertaken but for the injury.

MEDICAL ASSESSMENT BY THE REVIEW PANEL

Medical Assessor Lahz and Medical Assessor Couch conducted a medical assessment of Mr Deakin by audiovisual link.
Mr Deakin was aged 70, and right handed.
The Medical Assessors were aware that he had multiple musculoskeletal injuries involving neck, shoulders, knees and feet, although for the purpose of this assessment, the Medical Assessors confined the questioning to the claimed right wrist injury whilst also enquiring about the history of left wrist pain/treatment.

Pre- accident history and symptoms

Mr Deakin told the Medical Assessors that he was hospitalized in 2018 at John Hunter Hospital for three weeks following a serious bleed (from aorta?). At this stage, the anticoagulant drug was ceased, and he required surgery to extract a large clot from his abdomen. Later, he underwent insertion of a watchman device for chronic atrial fibrillation in lieu of ongoing anticoagulation treatment.
His current medications included: Panadol, Codeine, Atenolol, Progout, Somac and Duodart (prostatism).
The Medical Assessors asked Mr Deakin when he first had trouble with the right wrist, noting that the medical records indicate symptoms during the mid-1990’s. Mr Deakin explained that he was given a diagnosis of repetitive strain injury of the right wrist due to work at the time necessitating repetitive wrist twisting motions. He has worked for many years as an electrician and recalled having to run 60 metres of cable along the leg of a conveyor belt. He explained a process called “ramsetting” which involved having to (then) manually screw many bolts into steel in succession. At that time, pliers were used, rather than an electric driver.
In terms of treatment, he recalled having physiotherapy and a period of wrist splintage. He said the doctor diagnosed tendinitis although he eventually fully recovered, having no further problems with the right wrist until the motor accident in October 2017.
Mr Deakin said that up until the motor accident, he had been able to catch and pass (basket)balls, throw a ball into the hoop, and do push-ups. He had also been able to complete lawn mowing and substantial home renovation/maintenance tasks, specifically clearing roof gutters, gyprocking, laying concrete, removal of insulation and painting. He reported having constructed a shed at the rear of his property and having done much of the work to renew a kitchen. In addition, before the accident, he installed an archway between the kitchen and dining room. He also mentioned having dug trenches before the accident for replacement of water pipes. He did most handyman tasks himself aside from plastering for which he would usually call in a tradesman.
The Medical Assessors asked Mr Deakin about the plain X-ray of the right wrist performed in August 2017 (about six to seven weeks before the motor accident). Mr Deakin suggested that the X-ray had been done for legal (claims assessment) reasons after he had ceased work in 2015 due to a neck injury. At the time he had been an electrician working in the coal washery on ships. His duties involved using heavy hoses, driving dozers/loaders and general labouring tasks. He said that it was with some reluctance that he ceased work during 2015 due to neck problems.
Mr Deakin again denied any right wrist symptoms during the weeks/months leading up to the subject motor accident in 2017 and stated that he was fully functional in his usual activities inclusive of sports/coaching and home renovation tasks. He also played golf regularly (every six to eight weeks) with his son.
The only other incident he could remember regarding the right wrist between 1994-2017 was an incident in which he struck the right thumb also at work. He thought that would be in the records although there were no ongoing symptoms relating to that incident.
The Medical Assessors asked Mr Deakin about his left wrist. He said there was a work injury during 2004 when he had been pushing hydraulic fittings that were sticking. He pushed “harder” and there was a snap in the left wrist due to a ligament rupture. Dr Meads performed surgery involving some drilling with insertion of wires. The hardware could eventually be removed, and the outcome was good. His left wrist remained reasonably functional, certainly much better than the right.
The Medical Assessors further queried Mr Deakin details of his usual treating general practitioner (GP). He said he had been seeing Dr Peter Brown of Brook Medical in Muswellbrook for at least 15 years. They told Mr Deakin that the Panel would ask (again) if the GP records preceding the motor accident could be provided. We had requested these previously although they had not been provided.

History of the accident

The Medical Assessors asked Mr Deakin about the subject accident during October 2017.
The accident itself was complex given the involvement of multiple vehicles, poles, buildings and walls. Mr Deakin explained that a truck had been allegedly stolen. He and his wife were in a parked car at Singleton, having just purchased coffee. He had donned his seatbelt, started the engine and had his hands on the steering wheel, when he saw the truck at high speed “belting cars one after the other” in the rear view mirror. His vehicle was then struck from the rear causing it to be pushed forward before “flying” across a gutter. The vehicle then hit the wall of a pub before re-entering the roadway when the B-double truck forcibly struck the driver’s side of Mr Deakin’s vehicle causing the door to cave in against the steering wheel. The car then spun. The frontal airbags did not deploy although the side airbags did.
He and his wife were assisted from the vehicle by bystanders. His wife was assessed initially by ambulance officers and went to John Hunter Hospital by helicopter. Subsequently, he collapsed to the ground and conveyed to John Hunter Hospital by road ambulance.
He thought he complained of pain in the neck, shoulder, elbow, knee and possibly the wrist at hospital although he did remark he was unsure if he did complain at hospital about the wrist pain, which he said he noticed two to three days later. He referred also to photographs of the wrist (seen by the Review Panel) depicting clearly visible bruising of the wrist and distal forearm.

Treatment and symptoms

A few days later, Mr Deakin consulted his GP (Dr Brown) about right wrist ache and referred for an X-ray. He was also referred to Mr Paul Henderson, a physiotherapist who placed the wrist in a guard due to substantial pain complaints. Unfortunately, physiotherapy did not provide any symptomatic relief of wrist pain; accordingly he was then referred to Dr Meads, the hand surgeon who had previously operated on the left wrist (2004).
In December 2017, he complained to Dr Meads of a “lot of” right wrist pain receiving a different type of wrist brace. There was still no symptomatic improvement. Mr Deakin was somewhat hesitant about the proposition of wrist surgery given that he still had good use of his fingers. However, on 6 April 2018 he underwent wrist surgery being a four-point fusion following which he spent six weeks in a cast. At operation, the surgeon’s report refers to grade IV arthritic change at the radio-scaphoid joint and the scaphoid was excised.
Post-operatively, Mr Deakin attended physiotherapy although by September 2018 (Dr Meads’ correspondence dated 19 September 2018) he was complaining of ulnar right wrist pain with further (potential) surgery being discussed. The four-corner fusion had still not healed according to Dr Meads on 12 December 2018 and there was tenderness at the dorso-ulnar wrist associated with a degree of piso-triquetral arthritis.
Dr Meads, having discussed possible right wrist joint replacement, recommended a definitive wrist fusion instead. Mr Deakin underwent the wrist fusion in June 2019. Post-operatively, there was reduction in pain as well as greater power at the hand, although he was troubled by numbness in the fingertips, being subsequently diagnosed with carpal tunnel syndrome. Mr Deakin also noted onset of cramps in the right thumb and forefinger which occurred intermittently.
On 18 December 2019, a CT scan of the right wrist showed full union of the right wrist fusion although Mr Deakin was still complaining of numbness of the fingertips consistent with carpal tunnel. Dr Meads considered that he might need removal of the plate and decompression of the carpal tunnel although Dr Meads did not wish to proceed with this procedure for at least six months.
On 19 June 2020, Mr Deakin underwent right carpal tunnel decompression and removal of the screws. Dr Meads also performed release of the right little (trigger) finger due to recurrent locking of that finger.
In late 2020, Mr Deakin still complained however of ulnar right wrist pain as well as pain at the base of the right thumb. In addition, the right middle finger was locking due to “trigger” finger.
He received two steroid injections to the base of the right middle finger for triggering in respectively October 2021 and November 2022. The latter injections were helpful.
Of note, he told the Review Panel Medical Assessors, that the insurer had funded both right wrist fusion procedures.
Mr Deakin had not received any treatment since Dr Miniter saw him on 16 April 2021 on behalf of the insurer.
He is no longer wearing any wrist splint or guard.
He took simple analgesia such as Paracetamol with Codeine bis in die (BD) or else ter die sumendum (TDS) for symptomatic relief.

Current right wrist symptoms

The wrist was surgically fused in a few degrees of extension and ulnar deviation (the functional position).
Mr Deakin complained of pain and tenderness over the right wrist (midline) dorsum and over the distal radius and ulna (forearm).
He also reported pain over the ulnar aspect of the dorsal wrist.
On a typical day, there is constant 5-6/10 intensity pain at the dorsal right wrist. Activities such as gripping a mouse whilst playing solitaire stir up right wrist and distal forearm pain. He has to wipe his bottom with the left hand, it being too difficult to master this task with the right hand due to the wrist fusion. He has difficulties gripping with the right hand e.g. starting up the lawn mower, gripping to push the mower, using the battery vacuum cleaner and he had to use a long-handled washer to reach his back. He often uses the left hand in lieu of the right for activities.
For some years, the insurer was funding a mowing service, which Mr Deakin now self-funds.
His fingers still function very well aside from the middle finger which repeatedly locks up due to triggering. He would like another steroid injection in this location because this helps for a period.
Mr Deakin mentioned that the ring finger can also be rather stiff.
With specific activities, the thumb and forefinger still cramp and he has to use the left hand to gradually unfurl them. He mentioned that prolonged periods spent driving can induce the latter cramps.
Mr Deakin helps out as much as possible with chores. He can slowly hang the washing out. He has bought a flat headed mop for ease of use. He can use the right hand well enough providing there is no impact/load applied to the right hand. As noted, his fingers for the most part remain supple.
He reported ongoing difficulties due to right wrist pain with “deep digging”, hammering, painting and removing rust from an old car. He can no longer do heavy yard work, clear roof gutters and his son about eight months ago helped him pull up old carpet so that new carpet could be laid. Renovations have ceased due to the right wrist problems although he would still like to have the front verandah renewed.
He reported that the left wrist still functions “pretty well”.
His wife struggles to do the heavy tasks such as cleaning the bathroom and vacuuming for which he had requested assistance through the Compulsory Third Party (CTP) insurer although no assistance had been recently provided.
He had also stopped his sports coaching, netball and golfing activities since the motor accident.
He mentioned that he did undergo an occupational therapy assessment with Ms Lisa Middleton during November 2023.

Physical examination

A limited physical examination was undertaken given the virtual nature of the assessment.
The right wrist had been fused in the position of function. He displayed good finger function and demonstrated a full fist.
He also demonstrated full forearm supination and pronation bilaterally.

The Review Panel’s consideration of submissions

At the first Review Panel meeting on 12 February 2024, the Review Panel concluded it would be necessary to conduct an examination in order to address the parties’ submissions in relation to both motor accidents.

Right wrist injury

The insurer submitted that it was not apparent how the Medical Assessor arrived at his finding that the injury which the claimant sustained as a result of the accident was a "Right Wrist fusion" in circumstances where he clearly found that such surgery was related to the claimant's "underlying arthritis".
Mr Deakin submitted that the Medical Assessor had made it clear that the surgery to the right wrist would not have been undertaken but for the motor vehicle accident.
The Review Panel accepted that there was an exacerbation of pre-existing severe degenerative change at the right wrist due to the motor accident.
The Review Panel reviewed extensive GP records inclusive of several years before the subject motor accident.
The Review Panel noted only the following entries in relation to the right wrist:
(a) 28 January 2016 - ache in both hands and wrists (p 16 of the additional 764-page bundle), and
(b) 15 September 2017 (page 54 of additional 764-page bundle) sore wrists R>L- that is the only mention of the wrist in the six months before the accident.
The Review Panel carefully examined the contents of the GP records from August 2017 at which stage the claimant underwent an X-ray of the right wrist, although there was no documentation therein regarding the reasons for this X-ray. The latter films showed severe loss of radiocarpal joint space consistent with osteoarthritis.
It was significant that the Medical Assessors asked the claimant about this X-ray, he reported that he did not recall this.
Further, on examination, the claimant told the Medical Assessors that he was not experiencing any right wrist symptoms at the time of the subject accident.
It was significant in respect of the insurers submissions that the Review Panel concluded that Mr Deakin had minimal or else no symptoms at the right wrist immediately prior to the subject motor accident. There was just a single reference to right wrist symptoms one month before the motor accident, without further mention before the subject motor accident. There were no repeated references to the right wrist in preceding records (exception being 28 January 2016 where there is a single reference to “bilateral wrist pain”, but again without further mention).
The Review Panel also considered it significant that he was not receiving any treatment of the right wrist immediately before the motor accident, nor was there any need to consult with Dr Meads, the hand surgeon.
Finally, the Review Panel considered it significant that the motor accident was major. There was bruising present at the right wrist, recorded in the GP records. From the time of the motor accident, there had been ongoing symptomatic complaints at the right wrist. After the accident, he was soon referred to Dr Meads, embarking upon a course of conservative and then operative treatment.

WPI - right wrist

The insurer submitted that the UEI percentages in respect of right wrist movements did not add up and the Medical Assessor had erred by taking into account elbow movements without having found an injury to the right elbow.
On examination, the Review Panel found there was 21% UEI for ankylosis in the functional position (flexion/extension) Figure 32, page 40 AMA 4 Guides. According to Figure 29, page 38, there was 9% UEI for ankylosis in the radial deviation/ ulna deviation (RD/UD) plane. Following addition of 21 and 9 there was 30% UEI.
The Review Panel refers to the insurer’s submission, referenced at [151] above, which states that the Medical Assessor had erred by taking into account elbow movements.
The Review Panel refers to paragraph 6.31 Motor Accident Guidelines (MAG): The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored. Given the absence of both right wrist symptoms and the absence of treatment and specialist referral before the motor accident, the Review Panel attributed the present WPI of the right wrist to the subject motor accident without deduction.
The Review Panel did not calculate the combined UEI to include elbow movements which were unrestricted.
The Review Panel concluded that a 30% UEI at the right wrist for fusion equates with 18% WPI (Table 3, page 20 AMA 4 Guides).

Treatment Disputes - conclusion
Whether three cortisone injections to right wrist as proposed by Dr Bryce Meads is causally related and reasonable and necessary to the injury sustained in the subject accident

The Review Panel has accepted a permanent exacerbation of right wrist arthritis due to the motor accident. Therefore, it accepted that these wrist injections were reasonable and necessary treatment to reduce associated symptoms, thereby delaying need for surgery.

Whether three cortisone injections to right wrist as proposed by Dr Bryce Meads were reasonable and necessary in relation to the injury sustained in the subject accident

These were reasonable and necessary for the same reasons mentioned above.

Past domestic assistance
Whether the need for domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is causally related to the right wrist injury sustained in the subject accident

Yes, there was an aggravation of right wrist arthritis which has continued from the date of the subject accident.

Whether 0-1 hours per fortnight of domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident

This aspect (quantum) for reasonable and necessary lawn mowing requires assessment by an occupational therapist.

Future domestic assistance
Whether the need for domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident

Yes, for the same reason as given above.

Whether 0-1 hours per week of domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident

Yes, the symptomatic aggravation at the right wrist had been persistent despite treatment inclusive of surgery and the number of hours required for lawn mowing should be assessed by an occupational therapist.

Whether the need for domestic assistance (painting the internal of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident

The symptomatic aggravation at the right wrist had been persistent since the motor accident and thus causally related.

Whether painting the internal of the claimants house every 10 years from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident

The Review Panel accepted that there was a requirement for painting due to right wrist symptoms caused by the accident.
However, the number of hours required should be assessed by an occupational therapist.

Whether the need for domestic assistance (clearing the roof and gutters of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident

There had been ongoing right wrist symptomatic aggravation since the motor accident. Therefore, this was causally related.

Whether clearing the roof and gutters of claimant’s house once a year from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident

The Review Panel accepts there is a need for assistance with clearance of roof and gutters due to wrist pain from the motor accident.
However, the number of hours required should be assessed by an occupational therapist.

Whether the need for domestic assistance (regyprocking a bedroom and hallway) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident

Yes, it is causally related due to persistent right wrist symptoms since the motor accident.

Whether gyprocking a bedroom and hallway (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident

The Review Panel accepts that there is a need for assistance with gyprocking due to right wrist pain caused by the accident.
However, an occupational therapist should assess the number of hours required.

Whether the need for domestic assistance (pulling out carpet layers to make ready for new carpet) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident

Yes, due to persistent right wrist symptoms since the motor accident.

Whether pulling out carpet layers to make ready for new carpet (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident

The Review Panel accepts there was a need for assistance with pulling out carpet due to right wrist pain from the motor accident although an occupational therapist should assess the number of reasonable and necessary hours required.

CONCLUSION

The Review Panel revokes the certificate of Medical Assessor David McGrath, dated 23 September 2023.

Determination with respect to WPI

The Review Panel substitutes the determination and certifies that:
(a) the right wrist -soft tissue injury with subsequent fusion
was caused by the motor accident gave rise to a WPI of 18%.

Determination with respect to the treatment dispute

The Review Panel substitutes the determination of Medical Assessor McGrath and certifies that the following treatment disputes were caused by the accident and are reasonable and necessary:
Treatments
(a)   three cortisone injections to right wrist as proposed by Dr Bryce Meads is causally related to the injury sustained in the subject accident, and,
(b)   three cortisone injections to right wrist as proposed by Dr Bryce Meads is reasonable and necessary in relation to the injury sustained in the subject accident.
Past domestic assistance
(a)   the need for domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is causally related to the right wrist injury sustained in the subject accident.
Future domestic assistance
(a)the need for domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(b)   0-1 hours per week of domestic assistance (lawn mowing) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(c)   the need for domestic assistance (painting the internal of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(d)   painting the internal of the claimants house every 10 years from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(e)   the need for domestic assistance (clearing the roof and gutters of claimant’s house) from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the right wrist injury sustained in the subject accident;
(f)    clearing the roof and gutters of claimant’s house once a year from the date of medical assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(g)   the need for domestic assistance (regyprocking a bedroom and hallway) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident;
(h)   regyprocking a bedroom and hallway (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident;
(i)    the need for domestic assistance (pulling out carpet layers to make ready for new carpet) from the date of medical assessment is causally related to the right wrist injury sustained in the subject accident, and
(j)    pulling out carpet layers to make ready for new carpet (one-off) from the date of medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident.

The following treatment and care would be assessed by an occupational therapist assessor

Whether 0-1 hours per fortnight of domestic assistance (lawn mowing) from the date of the motor vehicle accident to the date of the medical assessment is reasonable and necessary in relation to the right wrist injury sustained in the subject accident.

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
Right Upper Extremity Right Wrist	MAPIG p13- 16 AMA4 Chap 3.1	YES	18%	3%	15%
Skin Surgical Scarring	MAPIG p57- 59 T18 TEMSKI AMA4 T2 p280	YES	0%	0%	0%

[2024] NSWPICMP 297

14 May 2024