Insurance Australia Limited t/as NRMA Insurance v El Ayoubi

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v El Ayoubi [2023] NSWPICMP 477
CLAIMANT:	Maggie El Ayoubi
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Anup Mangipudi
MEDICAL ASSESSOR:	Dawn Piebenga
DATE OF DECISION:	27 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Castle-Burton dated 16 August 2022; claimant involved in a motor vehicle accident on 18 March 2013; MA Jones issued a whole person impairment (WPI) assessment on 22 September 2015 that the claimant did not sustain psychiatric injury; MA Wilding issued a certificate on 23 March 2016 that the claimant had 0% WPI for physical injuries; MA Takyar issued a certificate on 8 April 2019; the claimant required domestic assistance from the date of the accident to the date of medical assessment and thereafter for the remainder of the claimant’s life due to psychiatric disabilities; on 4 December 2019 a medical Review Panel found that domestic assistance would only have been required for the first three months following the accident; matter referred to MA Castle-Burton who issued a certificate determining that the claimant needed assistance due to psychiatric disabilities from the date of the accident to 18 June 2013; insurer sought review of this assessment; Panel determined that the claimant’s restrictions were limited and that the disability she claimed would not be limited by any psychiatric disability; Held – that the certificate of MA Castle-Burton revoked; the claimant is entitled to domestic assistance for 2.75 hours per week from the date of the accident to 18 July 2013 as a result of psychiatric disabilities and no allowance for the future.
DETERMINATIONS MADE:	CERTIFICATE Certificate issued under s 61 (10) (b) of the Motor Accidents Compensation Act1999 1. The Certificate issued by Medical Assessor Castle-Burton dated 16 August 2022 is revoked. 2. The Panel finds it is reasonable the following amount of domestic assistance was provided: · 2.75 hours per week from 18 March 2013 to 18 July 2013 (13 weeks and 2 days). 3. The Panel finds that there is no need for the provision of domestic assistance to the claimant for the future.

STATEMENT OF REASONS

INTRODUCTION

The claimant is a 30-year-old female who alleges physical and psychiatric injuries from an accident which occurred on 18 March 2013.
On 22 September 2015, Medical Assessor Jones issued a whole person impairment (WPI) Certificate determining that claimant did not sustain a psychiatric injury from the accident.
On 23 March 2016, Medical Assessor Wilding issued a WPI Certificate determining 0%WPI for the following physical injuries:
(a)     cervical spine;
(b)     thoracic spine, and
(c)     lumbar spine.
On 8 April 2019, Medical Assessor Takyar issued a Treatment Dispute Certificate with the following determinations for the claimant’s alleged psychiatric injuries:
(a) a need for domestic assistance to be causally related to the accident, and
(b) domestic assistance from the date of the Medical Assessment Service (MAS) assessment for the remainder of the claimant’s life expectancy to be causally related to the accident.
A review decision was sought about this assessment.
On 4 December 2019, a Medical Review Panel issued a treatment dispute certificate determining that that domestic assistance would have only been required for the first three months following the accident for the alleged physical injuries.
Following the findings made by Medical Assessor Takyar and the Review Panel, the matter was referred to Medical Assessor Castle-Burton (the Medical Assessor) to assess the number of hours of domestic assistance that were or are reasonable and necessary as a result of the accident.
The following findings were made by the Medical Assessor in her certificate dated
16 August 2022:
“The following treatment:
• 2.75 hours per week of domestic assistance and every hour in between arising
from physical injuries caused by the motor accident from 18 March 2013 to 18
June 2013
• 3.25 hours per week of domestic assistance and every hour in between arising
from psychological injuries caused by the motor accident from 18 March 2013 to
the date of the MAS assessment.
• 3.25 hours per week of domestic assistance and every hour in between for 0-
62 years arising from psychological injuries caused by the motor accident from
the date of the MAS assessment for the remainder of the claimant's life
expectancy, and whether this assistance is reasonable and necessary in relation
to the injury sustained in the subject accident
IS REASONABLE AND NECESSARY in the circumstances”
The insurer submits that the assessment of the Medical Assessor is incorrect in a material respect because of the following errors made by her:
(a)    failure to consider all the available the evidence;
(b)    failure to grapple with the evidence;
(c)     failure to correctly observe the claimant’s environmental factors;
(d)    restricting her assessment based on the findings made by Medical Assessor Takyar, and
(e)    failure to raise the inconsistencies noted with the claimant.

The accident

The claimant reported that on 18 March 2013, at approximately 4.50pm she was driving her mother home from hospital in her Mitsubishi Mirage car. She was travelling east near the intersection of French Street, Bankstown when a vehicle travelling south on Conway Street, made a right turn in front of her vehicle causing the front of her vehicle to collide with the front driver side of the other vehicle.
The claimant reported that she believed she was travelling around 50kmph causing what she recalled as substantial and irreparable damage to the car.
Police and ambulance attended the scene, but no-one was taken to hospital. The claimant’s car was towed away. The claimant and her mother were taken home by the tow truck driver.

Insurer’s submissions

Error 1: Failure to consider all the available evidence

The insurer submits that at the time of the accident, the claimant was a carer for her mother, providing assistance with transport to medical appointments, translating and domestic assistance including shopping, cooking and cleaning. The claimant was receiving a carer’s pension for this. The insurer notes that this was reported to various doctors including the Medical Assessor.
The insurer says that on page 2 of the Certificate, the Medical Assessor referred to Centrelink file which was referenced as Annexure [22] of the original Application for Assessment. This file contained various reports of the claimant’s pre-accident medical history of bilateral knee pain and bilateral hip pain and subluxation (2008); depression, bilateral heel pain (2010); bilateral knee pain (2010), and thoracic spine pain (2012).
On 5 June 2020, the insurer lodged an updated/second Centrelink file as at 31 March 2020 to the Personal Injury Commission (Commission), which the insurer says revealed that the claimant was continuing to receive a carer’s pension following the accident, until
September 2014, being one and a half years after the accident.
This Centrelink file was only available to the Medical Assessor as it post-dated the treatment dispute assessments carried out by Medical Assessor Takyar and the Review Panel.
The insurer submits that the Medical Assessor has failed to consider this second Centrelink file as no reference was made to it.
The insurer says that in the circumstances where the second Centrelink file confirms the claimant’s capabilities of providing assistance and care to her mother for one and a half years after the accident, then a finding of no allowance for past or future domestic assistance should have been made by the Medical Assessor.

Error 2: Failure to grapple with the evidence

The insurer submits that the Medical Assessor failed to provide an analysis and/or engage with all the evidence before her.
In support of this submission, the insurer refers to various reports which indicated that the claimant’s ongoing psychiatric symptoms were not related to the accident.
The insurer says that upon considering the report of Dr Apler, dated 12 May 2013, the Medical Assessor noted:
“Dr Apler’s opinion was that Ms El Ayoubi had a prior history of anxiety and depression from 2009. He noted that her self-report of increasing emotional symptoms post-accident is not consistent with the usual patterns of symptoms being worse initially after an accident and improving with the passage of time … He described it more likely than not that her ongoing emotional symptoms reflect her pre-existing history of depression and anxiety, rather than the disorder related to the accident and noted it is likely her symptoms help avoid the burden of having to look after her mother and receive the care from her sister instead.”
The insurer also notes that on considering the Certificate of Medical Assessor Jones, dated 22 September 2015, the Medical Assessor noted:
“Assessor Jones issued a Certificate determining that the injuries referred to him – none were related to the motor accident therefore, an assessment of the degree of permanent impairment for these injuries was not required…
Assessor Jones concluded that Ms El Ayoubi did not have an active ongoing psychiatric disorder, rather that she reported some physical and emotional symptoms which appeared disproportionate to her reported level of pain and low level of physical activity. He noted there were certainly some elements of adjustment with depressed moods in relation to pain and ongoing problems, but not significant to constitute a psychiatric disorder”.
He noted there was a significant focus on pain in her presentation.
Overall, Assessor Jones did not consider Ms El Ayoubi had sustained a psychiatric
injury from the motor vehicle accident and therefore, did not find the following injuries
caused by the motor vehicle accident:
• Psychological – Major Depressive Disorder”
The insurer says that after considering the Certificate of the Medical Review Panel, dated
4 December 2019, the Medical Assessor noted:
“The Review Panel concluded that all injuries sustained in the accident on 18 March
2013 had resolved and they resulted in no current functional loss.
…
The Review Panel considered that some limited domestic assistance would have been casually related for a short period following the accident and considered this requirement would have only extended for a period of three months.
They were of the firm opinion that any future requirement for domestic assistance was neither causally related to the injuries caused by the accident, nor reasonable and necessary.”
The insurer submits that the evidence supports its contention that the claimant did not suffer from a psychiatric injury and that her physical injuries had resolved within three months following the accident.
The insurer submits that of note, even if it was accepted that the claimant sustained psychiatric injuries as a result of the accident, the insurer relies on the assessment of Medical Assessor Jones who found this to be related to pain and ongoing problems. The insurer also relies on the Review Panel’s findings, which found the claimant’s physical injuries to have resolved three months post-accident.
Following this, the insurer submits that the Medical Assessor failed to grapple with the evidence before her by not giving weight to any of the above findings which the insurer says, suggests that the claimant did not have any psychiatric injuries that would have resulted in a need for domestic assistance.

Error 3: Restricting her assessment by relying on the findings made by Medical Assessor Takyar

The insurer says that on 8 April 2019, Medical Assessor Takyar issued a Treatment Dispute Certificate with the following determinations for the claimant’s alleged psychiatric injuries:
(a) domestic assistance from the date of the accident to date of MAS assessment to be causally related to the accident, and
(b) domestic assistance from the date of the MAS assessment for the remainder of the claimant’s life expectancy to be casually related to the accident.
The insurer says that these findings were subsequently referred to the Medical Assessor to assess whether the domestic assistance was reasonable and necessary.
The insurer says that during his assessment in 2019, Medical Assessor Takyar also noted that the claimant was no longer able to attend her previous duties of looking after her mother full-time and studying and had withdrawn from TAFE study because of anxiety. He subsequently made a diagnosis of panic disorder with agoraphobia, a general anxiety disorder and a major depressive disorder.
The insurer says that contrary to this, in the assessment of the Medical Assessor, it was recorded that the claimant had been able to complete two TAFE courses (Fashion Design Merchandising and Diploma in business) and obtained her hairdressing qualification. The claimant also reported that she had applied to UTS to undertake Bachelor of Fashion.
The insurer says that the Medical Assessor noted that this was inconsistent with the evidence that the claimant lacked motivation and initiation to attend to her own personal care. However, the insurer says that the Medical Assessor ultimately found domestic assistance to be reasonable and necessary given Medical Assessor Takyar’s diagnosis when she says:
“In relation to her reasonable and necessary domestic assistance needs from the date of the accident (18 March 2013) to the date of MAS Assessment, due to psychological injuries – I have relied on the determination of Assessor Ash Takyar who issued a Certificate on 08 April 2019 that the psychological injuries gave rise to a need for domestic assistance, on the basis that he found she meets the DSM-V criteria for panic disorder with agoraphobia, a General Anxiety Disorder and a Major Depressive Disorder.”
The insurer submits that the Medical Assessor was not restricted to make a finding based on Medical Assessor Takyar’s determination.
The insurer submits that the Medical Assessor had various evidence before her that indicated that the claimant was not suffering from agoraphobia, a general anxiety disorder and a major depressive disorder, including:
(a)     the claimant’s environmental factors;
(b)     the claimant’s report that she has since been able to complete her studies and intends to go to university, and
(c)   the reports of various doctors, including Medical Assessors who did not find the claimant to suffer from a psychiatric disorder.
The insurer says that while the Medical Assessor is not a psychiatrist and would need to reasonably rely on findings made by various qualified experts, the insurer submits that she had ultimately limited herself to Medical Assessor Takyar’s findings.
The insurer says that though Medical Assessor Takyar determined domestic assistance for psychiatric injuries to be related to the accident, the Medical Assessor was not bound to find it reasonable and necessary.
By way of reiteration, the insurer says that the Medical Assessor had various evidence before her, which indicated that the claimant would have been capable of self-care, meal preparation, cleaning and organisation and laundry, by three months post-accident.
Furthermore, the insurer referred again to the second Centrelink file which Medical Assessor Takyar did not have the benefit of reviewing, showing the claimant’s capabilities of continuing to provide care to her mother post-accident. The insurer says that this file was provided to the Medical Assessor and was not considered by her.

Error 4: Failure to correctly observe the claimant’s environmental factors

The insurer says that on page 5 of the Medical Assessor’s Certificate, the claimant describes experiencing low mood, poor motivation, stress and anxiety and that she has avoided leaving the home since the accident.
The insurer says that the claimant described neglecting her personal care, not showering very often and not attending to her hygiene such as brushing her hair. It was also noted that the claimant stayed in bed in her pyjamas most of the day.
The insurer says that as a result of these allegations, the Medical Assessor allowed 0.5 hours per week for prompting the claimant to engage in reasonable routine of personal care and hygiene from the date of the accident, continuing for the claimant’s life expectancy.
The insurer refers to the last two photographs of the claimant’s bedroom on page 13 of the Certificate of the Medical Assessor which shows the following items, which the insurer says the Medical Assessor failed to note and/or observe:
(a)    make up brushes stored neatly in a holder;
(b)    various hair styling products;
(c)     various hats displayed on a shelf next to handbags;
(d)    a collection of headbands and necklaces;
(e)    a collection of over 10 nail polish bottles in an acrylic organiser;
(f)     micellar water that is used to cleanse and tone the skin and remove make up;
(g)    “Selfie” mirror ring light often used for photos and/or filming;
(h)    5x pairs of sunglasses arranged on a display rack, and
(i)      20x designer handbags on display, neatly sorted in the order of sizes on three
shelves.
The insurer says that of note, these variety of handbags include, but are not limited to:
(a)   several identical chevron pattern shoulder handbags in various colours;
(b)   crossbody bags;
(c)   evening clutches, and
(d)   tote/work handbags.
The insurer submits that the above items, some of which, the insurer says, have been evidently sorted for aesthetic appeal do not fit with the description of an unmotivated claimant who does not attend to personal care or suffers from agoraphobia.
The insurer submits that the Medical Assessor has erred in her assessment of self-care by failing to observe the fact that the claimant shows evidence of, at the very least, cleaning her skin, applying her make up and accessorising.
In the alternate, the insurer submits that the Medical Assessor failed to raise the inconsistency and/or question the claimant on why there were a variety of items which indicate that the claimant was attending to self-care.

Inconsistencies

The insurer says that in 2016, the claimant reported to Dr Harvey that she had not returned to TAFE since the accident and had attempted a hairdressing course but could not attend due to low blood pressure.
In light of this, the insurer noted that when making her final determination, the Medical Assessor said:
“Ms El Ayoubi’s presentation on the day of the assessment, confirmed that she lacks some motivation and initiation to attend to her own personal care as evidenced by her unkept presentation in her dressing gown and the state of her bedroom was untidy and disorganised.
There was evidence of takeaway food containers in the home which supports her subject account that she no longer has the motivation and energy to cook and relies on takeaway food. However, what is somewhat inconsistent is that she has applied to University and has been able to complete two TAFE courses with the extent of psychological symptoms she complains of. This along with her pre-existing history of psychological issues has been taken into account in determining her reasonable and necessary domestic assistance needs.”
The insurer says that pursuant to cls 1.41 of the Motor Accident Guidelines (the Guidelines), the Medical Assessor has evidently erred in not bringing the inconsistency to the claimant’s attention.
The insurer submits that this is erroneous in a material respect, particularly given the following specific findings made for past and future domestic assistance needs with respect to her psychiatric injuries:
(a)   self-care – 0.5 hours per week for prompting to engage in reasonable routine of personal care and hygiene;
(b)   meal preparation – 2 hours per week of bulk meal preparation assistance due to poor motivation and initiation to prepare meals;
(c)   cleaning and organisation – 0.5 hour per week, to prompt and assist her to maintain a clean and hygienic environment, and
(d)   laundry – 0.25 hour per week to prompt her to ensure that her clothes and bedlinen are washed in a timely fashion.

The insurer noted that the claimant has applied to University to do a Bachelor of Fashion degree at UTS. The insurer submits that the duration for this course is three years full time or six years part-time and is located at the UTS City Campus.
The insurer says that by failing to bring this inconsistency to the claimant’s attention, the Medical Assessor missed the opportunity to raise and address the following questions:
(a) how the claimant could be able to commit to a three or six year course if she needed prompting to simply brush her hair, prepare food or organise her environment, and/or
(b) how the claimant could be able to attend the City from her home in Campsie if she has agoraphobia.
The insurer submits that the above errors made by the Medical Assessor caused a failure to find that:
(a)   the claimant did not have any domestic assistance needs following the accident, or
(b)   alternatively, beyond three months-post accident, as she was continuing to provide care (which she was receiving a pension for) to her mother for one and half years post accident, and
(c)   the claimant did not have a psychiatric injury as a result of the accident, namely agoraphobia, a general anxiety disorder and a major depressive disorder, given:
(i)her ability to finish two TAFE courses and a hair dressing course;
(ii)her intention to now go to University to undertake a degree which will take 3-6 years to complete, and
(iii)her environmental factors which indicated that she is most likely practicing self-care regularly, leaving her home and socialising.
The insurer says that in light of the above errors and circumstances, that it is not sustainable to make a finding for domestic assistance needs for the remaining of the claimant’s life expectancy.

Insurer’s submissions on treatment dispute

The insurer refers to the claim form dated 21 March 2013 which alleged injuries to the "lower back, neck, left knee, bruising from seat belt" as a result of the accident.
The insurer says that the claimant's statement expands the allegations of injuries and disabilities to include her right shoulder, mid and upper back, both hips, and both forearms.
The insurer submits that in May 2016, the claimant was examined by Medical Assessor Wilding who concluded that the claimant had no permanent impairment to her cervical spine, thoracic spine and lumbar spine and assessed a 0% WPI. Medical Assessor Wilding also found that the claimant’s alleged left hip and right shoulder injuries were not caused by the subject accident.
The insurer disputes the past domestic assistance claimed by the claimant and relies on reports of Dr Harvey. The insurer notes that in October 2013, Dr Harvey considered that it was unlikely that the claimant suffered any injury of sufficient magnitude to require personal or domestic assistance immediately after the accident. At the time of examination, Dr Harvey was also of the opinion that the claimant did not require any domestic assistance currently nor is she likely to require assistance in the future.
The insurer further submits that a minor whiplash injury does not require domestic assistance, as the Guidelines for the Management of Acute Whiplash Associated Disorders for Health Professionals recommends staying active and maintaining normal life activities.
The insurer says that in May 2017, Dr Harvey was of the opinion that the claimant did not have any continuing musculoskeletal disabilities as a result of the subject accident, despite the claimant's ongoing complaint of chronic widespread pain since the accident.
Regarding the dispute in relation to the claimant's need for past gratuitous care, the insurer submits that the scope of the dispute is the totality of the hours between the amount claimed by the claimant and the medical opinion of Dr Harvey that is relied upon by the insurer, being as follows:
(a) 0 to 7 hours a week, and every hour in between (with , washing, cooking, cleaning, dusting, laundry, ironing, shopping, driving, vacuuming, and mopping), from 8 March 2013 to the date of the MAS assessment.
The insurer submits that the claim for future domestic assistance is not reasonable or necessary, and not related to the subject accident.
The insurer submits that the scope of the dispute is the totality of the hours between the amount claimed by the claimant and the medical opinion of Dr Harvey, being as follows:
(a) 0 to 7 hours a week, and every hour in between (with washing, cooking, cleaning, dusting, laundry, ironing, shopping, driving, vacuuming, and mopping), from the date of the MAS assessment to the claimant's prospective life expectancy of 88 years old.

Claimant’s submissions

Medical Assessor Castle-Burton found that:
(a)   2.75 hours per week care was reasonable and necessary for the period
18 March 2013 to 18 June 2013 (3 months) due to the claimant’s physical injuries;
(b)   3.25 hours per week was reasonable and necessary from 18 March 2013 to the date of the assessment in respect of the claimant’s psychological injuries, and
(c)   3.25 hours per week of care was reasonable and necessary from the date of the Certificate for the claimant’s life expectancy in respect of her psychological condition.
The claimant confirms that the Medical Assessor found that the claimant’s physical condition did not warrant care beyond 18 June 2013, though ongoing care was warranted based upon the claimant’s psychological injury.
The claimant says that the Medical Assessor reviewed the material, undertook an examination, inspected the claimant’s household, and watched as she performed tasks in and around the home, and then made the relevant factual determinations applying her own experience and expertise.
In this respect the claimant submits that the Medical Assessor was in a far better and advantageous position to make these assessments than any of the other experts that have commented in the case, not only because of the time that the Medical Assessor spent with the claimant but by reason of the experimentation within the location of where the services were required that she was able to have performed and observed. These were features denied to all other experts in the case. Further inferences were able to be drawn and were in fact drawn by the Medical Assessor based upon what was observed within the home and its level of untidiness as compared to and as consistent with what the Medical Assessor would have expected based upon her clinical findings and experimentations.
The claimant says that several further established propositions should be borne in mind in respect of these submissions:
(a) section 1.21 of Motor Accident Permanent Impairment Guidelines 1 June 2018: The evaluation should only consider the impairment as it is at the time of the assessment, and
(b) the Certificate should be construed, in accordance with the principles in Minister for Immigration & Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. There the Court said a Court should not be "Concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued:
"The reasons for the decision under review are not to be construed minutely
and finely with an eye keenly attuned to the perception of error…
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed... [The Court] must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."
The claimant says that while it is not the function of the Medical Assessor to choose between the conflicting expert opinions, but rather to form their own opinion, the Medical Assessor’s opinion was supported by much of the claimant’s medical material and was supported by the previous assessment of Medical Assessor Takyar dated 24 April 2019.
The claimant submits that the findings of the Medical Assessor were also supported by the lay witness statements that were before her.
The claimant submits that the following may be stated by way of summary:
(a)   it was the Medical Assessor’s role to form her own opinion of the dispute referred for assessment. It was not her role to choose between competing expert opinions;
(b)   the Medical Assessor was entitled in forming the views to exercise her expertise and clinical judgment, beyond which further elucidation/reasoning is not possible;
(c)   in this case the Medical Assessor found that the claimant was credible, her complaints were generally consistent with the history that had been provided and consistent with much of the material with which she had been provided and which she had read and expressly had had regard to;
(d)   the Medical Assessor was fully aware of the entirety of the case that the insurer wished to put. The Medical Assessor spent many pages from the heading “Review of Documentation” on page 16 to page 26 summarising the material with which she had been provided thereby making it abundantly clear that she had had regard to it in forming her views;
(e)   further, the claimant says that it is clear from the Medical Assessor’s findings at point 25.9 and 29.9 that the Medical Assessor preferred the views in respect of the claimant’s psychiatric condition of Medical Assessor Takyar as being most consistent with her own findings and thus chose to act upon those findings in forming the conclusions which were the basis of her certificate;
(f)    an express riposte to the insurer’s submission that the Medical Assessor failed to engage with the evidence is that it is to be noted that at paragraph 29.8 the Medical Assessor expressly found in favour of the insurer’s submissions in respect of the claimant’s physical injuries agreeing with the insurer and the Review Panel’s findings that domestic assistance would only have been required for approximately three months following the motor vehicle accident on the basis of any physical injury suffered by the claimant;
(g)   the Medical Assessor, following her lengthy review of the material, and her lengthy discussion of it under the heading “Determinations-Treatment” considered the material and formed her own views in accordance with the statutory function required of her, and
(h)   there is no reason to suspect that the Medical Assessor fell into error.

Error 1: Failure to consider all evidence

The claimant says that the insurer complains that the Medical Assessor did not consider an updated Centrelink file dated 31 March 2020 which was provided to the Commission on
5 June 2020.
Further the claimant says that the insurer is unable to identify how this material would take the matter any further than their medical evidence already did. The claimant says that the insurer’s principal complaint was based upon the medical opinions of Dr Harvey that the claimant had recovered. The claimant says that this was the primary case addressed by the Medical Assessor which she set it out in detail.
The claimant says that at paragraph 16 of her certificate, Medical Assessor Castle-Burton notes that the claimant was on a Centrelink pension as a carer for her mother.
The claimant says that the material is immaterial for two other reasons. Firstly it does not mean that the claimant was capable of performing duties for her mother or was performing duties for her mother, only that Centrelink continued to pay her for a period of time on that basis. This was clearly changed no later than 14 months after the accident. It is also contrary to the express assertions of the claimant that following the accident the claimant’s sister had to replace the claimant’s contribution to the domestic tasks as she reported she could not do her previous tasks due to pain.
Secondly given the finding of 3.25 hours during that period no award of compensation for care can be made because of the thresholds requiring a minimum of six hours per week.

Error 2: Failure to grapple with the evidence

The claimant says that the comprehensive nature of the review of the evidence over a space of 10 pages in her reasons, summarising each material document, together with the detailed findings over three pages under a heading relevant to “Determinations” puts a lie to any suggestion that the Medical Assessor did not “grapple” with the evidence.
The claimant also says that the Medical Assessor made findings that were both in favour of the claimant and findings that were against the claimant. The claimant says that this can only take place if the Medical Assessor was performing her function of dealing with the material that was before her.
The claimant says that in any event “grappling” with the evidence is not the test. The role of the Medical Assessor is to form her own views as to the dispute referred to determination. In that process she had to consider relevant material, she did, she did not have to make findings in respect of it. What was required was her determinations. The claimant relies on the following:
“A Medical Assessor is not required to state why she did not accept certain matters. The Assessors duty is to set out the findings and give reasons for the decision that was actually made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] and [68]; 62 ALD 225; [2001] HCA 30.”
Further, the claimant says that it is clear from a reading of the certificate and reasons that having conducted her assessment, the Medical Assessor ultimately formed the view that the review panel findings in respect of the claimant’s physical injuries most accorded with what she had found, and accordingly made a finding that the claimant’s needs for care in respect of her physical condition ended no later than 18 June 2013, but that in respect of the claimant psychiatric injury the views of Medical Assessor Takyar most reflected her own findings and it was upon that opinion that she made her ultimate determinations about the claimant’s needs for care.

Error 3: Restricting assessment to the findings of Medical Assessor Takyar

The claimant says that the Medical Assessor did not restrict her findings to those of Medical Assessor Takyar.
The claimant says that following a review of the evidence, the Medical Assessor preferred the findings of Medical Assessor Takyar as most consonant with her own. The claimant says that the Medical Assessor did this, is confirmed by the other finding that she made, namely, to prefer the findings of the Review Panel in respect of the claimant’s physical injuries to restrict the claimant’s entitlements to care in accordance with that Review Panel assessment.
Secondly, the claimant says that this alleged ground reveals the error in approach set out in the authorities cited above. The claimant says that contrary to the insurer’s position, it is not the role of the Medical Assessor to pick and choose which expert opinion is to be preferred. It is her role as the Medical Assessor to determine the dispute and to give reasons for her own determinations. The claimant says that the Medical Assessor did that and the insurer does not complain otherwise.

Error 4: Failure to correctly observe the claimant’s environmental factors

The claimant says that contrary to the insurer’s submission, the Medical Assessor did observe the claimant’s living environment, did so in detail and took photographs. The claimant says that the Medical Assessor expressly found at pages 12,13 and 14 (evidenced by photographs which she took and appended to the Certificate) that many rooms in the home were cluttered and untidy. In respect of the claimant’s bedroom, the room upon which this alleged error is based, the claimant submits that contrary to the insurer’s submission, the Medical Assessor was not in error.
The claimant says that given the Medical Assessor’s findings it is unnecessary to resolve those competing submissions nor to deal with the insurer’s fallback submission that Medical Assessor ought to have questioned the claimant about these items. The claimant submits that it is clear that in the Medical Assessor’s view, that what she observed in the claimant’s bedroom was consistent with the findings she ultimately made.

Error 5: Failure to raise inconsistencies

The claimant says that at paragraph 24, the Medical Assessor did raise with the claimant the physical inconsistency which was noted. The claimant says that undoubtedly this played a role in the Medical Assessor’s preference for the opinion of the Review Panel in respect of the claimant’s physical condition. The claimant says that no error here, even if established, would be material as no allowance for care which would sound in compensation was made.
The claimant says that in respect of the alleged psychological “inconsistencies” these were, in the claimant’s submissions, undoubtedly factored into the findings of the Medical Assessor against the claimant’s claim. The claimant says that in other words, the alleged “inconsistencies” if satisfactorily resolved would only have led to increased allowances for care, not to less. In support of this the claimant says that the Medical Assessor said in respect of these “inconsistencies” that “…This along with her pre-existing history of psychological issues has been taken into account in determining her reasonable and necessary domestic assistance needs” (claimants emphasis added).

Medical evidence and statements

Certificate of Medical Assessor Anna Castle-Burton dated 16 August 2022

Despite the claimant denying any prior injuries and disabilities, the Medical Assessor noted that the insurer submitted that the claimant’s Centrelink file (A22) and medical records of
Dr Ferkh recorded the following pre-accident medical history (A23): bilateral knee pain and bilateral hip pain and subluxation (2008); depression, bilateral heel pain (2010); bilateral knee pain (2010); and thoracic spine pain (2012).
The Medical Assessor noted that the claimant has completed two TAFE Diplomas: Fashion Design Merchandising; and in 2022 a Diploma in the business side of fashion. She also obtained a hairdressing qualification in 2016. The claimant described neglecting her personal care and does not shower very often, nor attend to her hygiene such as brushing her hair. The claimant’s participation in pre-injury domestic roles has dropped significantly. The claimant described experiencing low mood, poor motivation, stress and anxiety and avoids leaving the home since the accident.
She reported rarely leaving the house.
The claimant said that she had applied to University to do a Bachelor of Fashion at UTS.
Clinical Observation – the claimant’s range of movement was measured however, she was observed displaying greater range of movement than measured during the objective assessment when performing functional tasks such as transfers, getting down into the fridge and reaching into cupboards.
She did not appear to put full effort into the range of movement assessment and when asked, indicated that she was experiencing a lot of pain and blood rushing to her head and cold water feeling rushing down her back.
The Medical Assessor said:
“The results of my assessment could not verify her complaints of high levels of pain and functional restriction of basic movements including sitting, standing and walking. Ms El Ayoubi presented with low mood and a flat affect however, clinical observation of her performing sitting, walking, standing, bending and transfers were all within normal limits.”
The claimant showed some reduction in range of movement in her cervical spine, lumbar spine and shoulders however, I did not feel that she put forth her true effort during the range of movement assessment, as demonstrated during functional task performance.
She did not consider that the claimant had needs for domestic assistance due to physical injuries caused by the subject accident beyond 18 June 2013.

In relation to her reasonable and necessary domestic assistance needs from the date of the accident (18 March 2013) to the date of MAS assessment, due to psychological injuries – the Medical Assessor relied on the determination of Medical Assessor Takyar who issued a Certificate on 8 April 2019 that the psychological injuries gave rise to a need for domestic assistance, on the basis that he found she meets the DSM-V criteria for panic disorder with agoraphobia, a general anxiety disorder and a major depressive disorder.
The medical assessor said that the claimant’s presentation on the day of the assessment, confirmed that she lacked some motivation and initiation to attend to her own personal care as evidenced by her unkept presentation in her dressing gown and the state of her bedroom which was untidy and disorganised.
There was evidence of takeaway food containers in the home which supported her subject account that she no longer has the motivation and energy to cook and relies on takeaway food. However, what is somewhat inconsistent is that she has applied to University and has been able to complete two TAFE courses with the extent of psychological symptoms she complains of. This along with her pre-existing history of psychological issues has been taken into account in determining her reasonable and necessary domestic assistance needs.
The Medical Assessor found a reasonable and necessary need for domestic assistance from the date of accident to date of MAS assessment, based on psychological injuries found causally related as the following:
“Self-care – 0.5 hours per week for prompting to engage in reasonable routine of personal care and hygiene.
Meal preparation – 2.0 hours per week of bulk meal preparation assistance due to poor motivation and initiation to prepare meals.
Cleaning and organisation – 0.5 hour per week, to prompt and assist her to maintain a clean and hygienic environment.
Laundry – 0.25 hour per week to prompt her to ensure that her clothes and bedlinen are washed in a timely fashion.”
This totals 3.25 hours per week.
The Medical Assessor said that with no information on prognosis of her psychological functioning and no active psychological treatment at the current time, she believed that this level of domestic care was likely to continue to be required to the claimant’s life expectancy.
The Medical Assessor found that from the date of assessment to life expectancy, the claimant had a reasonable and necessary need for 3.25 hours per week of domestic assistance arising from psychological injuries caused by the accident.
A medical certificate was completed by Dr Saeed on 19 March 2013.
He noted injuries to the neck and thoracic spine, chest injury, sternum injury, shock and left thumb and shin injury.
Proposed treatment plan was for medium term 6-12 weeks for physical therapy and rehabilitation.
In particulars provided by the claimant to the insurer, it was outlined under ‘Domestic Assistance’ that she was living with a family friend, Fatima in a 3-bedroom house occupied with Fatima’s parents and 13-year-old brother for the past 13 years, but before the accident, she was independent, came and went as she pleased and now requires the following weekly assistance from Fatima who is 18 years old and studying Criminology and her cousin Susan:
•      laundry and ironing – 1.5 hours per week;
•       mopping, vacuuming and cleaning – 1.5 hours per week;
•       preparing meals, cooking and washing up – 3 hours per week;
•       driving and shopping – 1.5 hours per week;
•       washing car – 30 minutes, and
•       massage – 30 minutes.

Claimant’s statement

This detailed that the claimant was unable to perform any of her pre-injury domestic duties and relied on her youngest sister. The claimant detailed her estimate of pre-injury contribution to tasks as follows:
•       washing, cooking, cleaning, dusting – 15 hours per week;
•       laundry and ironing – 3 hours per week;
•       shopping and driving – 15 hours per week, and
•       vacuuming and mopping – 4 hours per week.
For a total pre-injury contribution to domestic tasks claimed at 37 hours per week. She claimed she could only now perform one of those hours in the category of shopping and driving.
Medical Assessor Wilding said that the Personal Injury Claim Form in the listed injuries made no reference to the right shoulder and left hip, although Dr Saeed noted limitations in the left shoulder and ‘clicking’ of both hips.
He found the following injuries were caused by the motor vehicle accident:
(a)   cervical spine – musculoligamentous strain;
(b)   thoracic spine – musculoligamentous strain, and
(c)   lumbar spine – musculoligamentous strain.
However, the left knee soft tissue injury was not caused by the accident. Medical Assessor Wilding found that the degree of permanent impairment was 0% for the injuries found causally related.
Report of Dr Harvey, of 15 October 2013. He said that the claimant may have suffered soft tissue injuries to the back, neck and shoulder girdle. He was not of the opinion that her injuries were of great severity. He could not find any objective or radiological evidence that she had suffered any musculoskeletal injury and found it unlikely she suffered any injury of significant magnitude to require personal or domestic assistance immediately after, nor continuing in the future.
It was recorded that on 8 May 2013 the claimant said that she had a fall on the stairs at home. On 9 May 2013 she was referred for a whole body bone scan. She also had on the same day X-rays of the cervical spine, lumbar spine, pelvis and right hip and right knee. She did see her own doctor again on 3 June 2013. On 25 July 2013 she was seen by Dr Maniam on referral from her own doctor.
On 10 September 2013, the claimant had an MRI scan of the cervical spine on referral from her own doctor. She says that she paid for this examination herself. She had been referred also for an MRI of the lumbar spine, but she has not proceeded with this because of the lack of funding. She was seen by a counsellor at the same medical clinic where she sees her doctor. She has seen him monthly 4-5 times.
Dr Harvey said that the claimant had difficulty specifying any main problem arising from her accident. She indicated she had pain in multiple areas. She complained of pain in the neck radiating over the top of both shoulders into both shoulder blades down the whole length of the spine to the lumbar region. The pain is felt over both iliac crests but not into the groins.
All movements of the cervical spine were of fair ranges but every movement caused some complaint of pain. Rotation of the thoracic spine was of good range but caused pain about the right lower ribs.
There was no muscle wasting in either upper limb. She complained of some diminution of sensation over the whole of the right upper limb. The biceps jerks and triceps jerks were brisk and bilaterally equal. There was no muscle weakness in the upper limb. It was noted that when the upper limbs were being examined, she turned her head freely from side to side to watch this being done.
Dr Harvey said that he had stated that the claimant’s presentation is not explicable on the basis of physical injury. He said that his reasons for saying this were as follows:
“It would be very difficult to explain her continuing widespread pain on a basis of an injury that she suffered on 18/03/13 considering she went home from the accident in a tow truck and did not seek medical attention until the following day.
The very widespread nature of her pain and tenderness was quite unlike that anticipated with a physical injury when one or two areas take the brunt of injury and the pain and tenderness is far more localised.
The glove-type diminution of sensation over the right upper extremity and the stocking-type sensory loss over the left lower extremity could not have any physical basis.
It is to be noted that on movement of the lumbar spine she complains of pain in areas far removed from the region being moved, mainly around the lower thoracic region and the right side of the thorax. The flexion of the lumbar spine was not consistently restricted as can be demonstrated by her ability to sit up on the couch with the knees fully extended. The limitation of straight leg raising is not consistently restricted as can be demonstrated on her ability to sit up on the couch with the knee fully extended.”
Movement of the neck was not consistently painful as can be observed when she rotates her head from side to side to watch her arms being examined.
It is possible that the claimant may have suffered soft tissue injuries to the neck, back and left knee in the traffic accident but Dr Harvey did not believe that the injury could have been of great severity and did not consider that her present presentation was consistent with physical injury.
Dr Harvey said that it was unlikely that she suffered any injury of sufficient magnitude to require personal or domestic assistance immediately after the accident and, certainly, she does not require any continuing personal or domestic assistance now, nor is she likely to require it in the future.
He said that not only were there no objective signs, but there were inconsistencies. Although the claimant was unwilling to move her right shoulder through the full range when examined on this occasion, she did not complain of pain in the shoulder joint on the attempted movement, but rather over the shoulder blade and he did not consider that this apparent loss of shoulder movement was the result of any pathology in the right upper extremity, but rather a manifestation of her abnormal pain behaviour. Dr Harvey said that he noticed that when
Dr Maniam examined her in September 2013, he did not comment on any loss of movement in the right shoulder and it would appear that this complaint is not consistently present.
Report of Dr Harvey dated 8 September 2016. The claimant reported that she had not returned to TAFE since the accident, as she could not concentrate due to pain. She said that she had attempted a hairdressing course but could not attend due to low blood pressure and pain and she was no longer able to be a carer for her mother.
She stated that she does nothing at all and is not able to look after cleaning her own room.
Dr Harvey did not believe the claimant’s widespread complaint of pain and tenderness had any basis of physical musculoskeletal disease.
He noted that he took into consideration the investigations including the MRI scan of her cervical spine of 12 September 2013 and the MRI of her lumbar spine on 24 April 2014, but found the changes were degenerative in nature and a common finding in the general community and not because of trauma and no significance in the absence of appropriate clinical correlation.
Report of Dr Harvey dated 11 May 2017. It was noted that since the last review, the claimant had an MRI of the right shoulder of 8 September 2016, after being referred to see Dr Danielle Rahme.
He noted her complaints as having problems with her right arm because it was numb and weak, numbness in sitting if she sits too long, pain in her lower back, pain in her back and neck, pain in her right shoulder and cracking movement of her hips.
Dr Harvey’s conclusion was that there had been no significant change since last examination and his opinion remained unchanged. He noted the MRI scan of the right shoulder of
1 September 2016 which did not show any significant abnormality.

MAS Certificate of Medical Assessor Nel Wijetunga dated 1 March 2019

Medical Assessor Wijetunga issued a Certificate that physical injuries gave rise to a need for domestic assistance for tasks such as washing, cooking, cleaning, dusting, laundry, ironing, shopping, driving, vacuuming, and mopping from 18 March 2013 to the date of MAS assessment and found it causally related to the injuries arising from the accident.
The Medical Assessor did not find that the need for domestic assistance from the time of the assessment for the remainder of the claimant’s life expectancy was causally related to the injuries sustained in the accident.
Medical Assessor Wijetunga’s clinical examination found normal range of movement of the cervical spine, lumbar spine and a slight range of movement reduction in shoulder movements.
It was noted that the claimant’s complaint of her left shoulder problem was not detailed in the Personal Injury Claim Form and yet at some stages the claimant described bilateral shoulder pain. She noted the claimant was unable to explain the fluctuating description of her symptoms of knee pain.
The Medical Assessor found the neck had been caused by the motor vehicle accident, but noted a lack of documentation from the onset of right shoulder pain. However, she found that the right shoulder injury was probably caused by the accident.
Medical Assessor Wijetunga found the physical injuries gave rise to a need for domestic assistance and on an hourly basis per week.
Medical Assessor Wijetunga considered that the claimant had sustained a whiplash associated disorder and considered her injuries as minor injuries. Consequently, she did not consider it reasonable and necessary for domestic assistance from the date of the assessment for the remainder of the claimant’s life.

Certificate of Medical Assessor Takyar dated 8 April 2019

Medical Assessor Takyar issued a Certificate that the claimant’s psychological injuries gave rise to a need for domestic assistance from 18 March 2013 to the date of assessment and continuing for the claimant’s life expectancy. He also concluded that this assistance was causally related to the injuries sustained in the accident.
Medical Review Panel Certificate dated 4 December 2019 comprising Medical Assessor Couch, Medical Assessor Assem and Medical Assessor Gibson
The Review Panel issued a certificate, revoking the certificate of Medical Assessor Wijetunga and issued a new certificate determining that the physical injuries gave rise to a need for domestic assistance with tasks such as washing, cooking, cleaning, dusting, laundry, ironing, shopping, driving, vacuuming and mopping from 18 March 2013 to 18 June 2013. The Panel concluded that the need was causally related to the injuries sustained in the accident and was reasonable and necessary in the circumstances.
The Panel determined that domestic assistance to the date of assessment and the remainder of the claimant’s life, did not relate to the injuries caused by the accident and was not reasonable and necessary.
The Panel concluded that the claimant had sustained injuries to her neck and back in the crash. Although not originally referred to by Medical Assessor Wilding in 2016 for permanent impairment assessment, the Panel considered that the claimant had sustained an injury to the left knee, probably from a direct blow – this had resolved. The Panel noted that Medical Assessor Wijetunga had concluded that there had been no direct injury to the right shoulder. The Panel said that on careful review of Dr Saeed’s records, the claimant probably did sustain a right shoulder injury-possibly from the seat belt. Subsequent investigations, and the fact that the shoulder was not mentioned by Dr Maniam until 2015, suggest that any shoulder injury was probably minor.
Given the six and a half years which had elapsed since the accident, at that time, and the overall clinical picture, the Panel concluded that all injuries sustained in the accident on
18 March 2013 had resolved, and that they resulted in no current functional loss. The Panel found no medical diagnosis related to the accident to account for her symptoms.
The Panel concluded that the accident was the cause of the following injuries:
(a)   cervical spine – soft tissue injury;
(b)   thoracic spine – soft tissue injury;
(c)   lumbar spine – soft tissue injury;
(d)   right shoulder injury – soft tissue injury, and
(e)   left knee – soft tissue injury.
The Panel also concluded that the left hip traumatic synovitis was not caused by the accident.
The Panel further found that the following injuries had resolved:
(a)   cervical spine – soft tissue injury;
(b)   thoracic spine – soft tissue injury;
(c)   lumbar spine – soft tissue injury;
(d)   right shoulder injury – soft tissue injury, and
(e)   left knee – soft tissue injury.
The Panel considered that some limited domestic assistance would have been necessary for a short period following the accident and considered this requirement would have only extended for a period of three months.
The Panel found that any future requirement for domestic assistance was neither causally related to the injuries caused by the accident, nor reasonable and necessary.
The Review Panel concluded that the need for domestic assistance did not continue beyond 18 June 2013.
The Panel also considered that some limited domestic assistance would have been causally related for a short period following the accident. Although the disputed treatment was listed as “from 18 March 2013 to the date of the MAS assessment”, the Panel considered that this requirement would have only extended for a period of three months.
The Panel noted that the amount of domestic assistance considered to be reasonable and necessary would be determined separately by an occupational therapist.
The Panel was of the firm opinion that any future requirement for domestic assistance was neither causally related to injuries caused by the motor accident (which have resolved), or reasonable and necessary in the circumstances.
The Review Panel’s findings in relation to whether the treatment provided, or to be provided, was related to the injury caused by the motor accident are different to the findings as stated in the Related Treatment certificate issued by Medical Assessor Wijetunga. This is because it considered that the related need for domestic assistance did not continue beyond
18 June 2013.
The claimant was seen by Dr Sheikh, Rehabilitation & Pain Medicine Consultant around
28 January 2014, who estimated she had a reduced capacity to undertake daily living activities due to significant loss of physical tolerances in the upper and lower limb and restricted functional tolerances.
Dr Sheikh noted the claimant’s tolerances at the time of assessment is as follows:
•       walking – 15 to 20 minutes;
•      standing – 10 to 15 minutes;
•      sitting – 20 to 30 minutes;
•      driving – 20 to 30 minutes, and
•      lifting – 4kg to 5kg.
She demonstrated:
•       moderately reduced range of movements with rotation in her cervical spine;
•       reduced range of movement of both lower limbs;
•       restricted bending, and
•       restricted lifting and crouching.
The claimant was seen by psychiatrist, Dr Apler in 2015. He believed she had a prior history of anxiety and depression from 2009 and noted her self report of increasing emotional symptoms post-accident as not consistent with the usual patterns of symptoms being worse initially after an accident, improving with the passage of time.
Dr Apler said that the claimant no longer had a psychiatric disorder related to the accident and would not require domestic care due to emotional complaints.
Dr Apler said that the claimant did not, does not and will not require domestic care as she reported physical symptoms rather than emotional complaints affecting her capacity to look after herself and her housework;
“• She has a good prognosis as she no longer has a psychiatric disorder related to
the accident;
* Her emotional state stabilised, unlikely to change significantly over the next
Twelve months;
• Assessment of permanent impairment is not appropriate as she has no
psychiatric disorder related to the accident."

Medical Assessor Jones certificate dated 22 September 2015

The Medical Assessor said that the claimant presented at assessment as consistent with not having an active ongoing psychiatric disorder. The claimant reported some physical and emotional symptoms but these appeared to be proportional to her reported level of pain and low level of physical activity. There was some element of adjustment with depressed mood in relation to her pain and ongoing problems. However the Medical Assessor said that he would not consider that this would be sufficient to constitute a psychiatric disorder. The claimant was not receiving active ongoing psychological and psychiatric treatment and there was a significant focus of pain in her presentation.

The Medical Assessor found that the following injuries were not caused by the motor accident:
• psychological - major depressive disorder.
The Medical Assessor said that the claimant had stabilised from a psychiatric perspective and was unlikely to change significantly in her psychiatric status in the upcoming 12 months. It was the Medical Assessor’s opinion that there was no permanent psychiatric impairment.
Medical certificate dated 21 March 2013 stated the medical diagnosis was neck and thoracic and chest injury.
Dr Maniam in his report dated 13 September 2013 noted mild to moderate neck pain, and mild to moderate lumbar spine pain and left hip pain and left knee pain. There is no mention of shoulder problems. Dr Maniam assessed the cervical spine as a DRE category II and the lumbar spine as a DRE category II both resulting in a 5% WPI. He assessed there was a 10% WPI.
Dr Manian in his report dated 23 October 2014 noted that new diagnostic studies namely MRI scans of the thoracic spine, lumbar spine, both hips and both shoulders were taken. He noted that the MRI scans revealed a cam type of impingement of the hips but did not assess WPI again.
In a further report dated 10 July 2015 Dr Maniam assessed WPI for both the cervical and lumbar spine, as a DRE category II resulting in a 5% WPI. The right shoulder was assessed as a 5% WPI and the left hip was assessed at 2% WPI. Overall Dr Manlam assessed there was a 17% WPI.
United Medical Centre clinical notes of Dr Saeed for consultations from 2013 to 2017.
On 19 March 2013, the day after the accident, Dr Saeed recorded bruising in the claimant’s chest, thoracic spine, tenderness with painful movement, neck tenderness with stiff painful movement, left thumb pain, a small abrasion of right knee and bruising and swelling of left upper shin. He wrote: “neck sudden movement, neck and shoulder pain mainly left side, limitation of movement all direction”. He noted that she was anxious and that the car had been written off. One week later, Dr Saeed recorded:
“Getting anxiety and hyperventilation attacks, feeling sensation down from the back, both hip
clicking and pain mostly left side…”
He recorded:
“Reason for contact: PTSD (post traumatic stress disorder), MVA (motor vehicle accident).
Management: psychotherapy counselling, advice reassurance, relaxation techniques. Think positive. Advice for psychosomatic symptoms.)”
At three attendances in April 2013, Dr Saeed described similar symptoms. On 29 April 2013 he recorded symptoms in the neck, both knees, right hip and back. The Panel noted that the next mention of her shoulder was on 27 June 2013:
“Biting sensation from shoulder down and numbness”
On 4 July 2013 it was recorded:
“Right shoulder pain, upper back right thoracic pain, radiation to arms.”
There are some 11 further attendances during 2013. At several of these there was mention of various musculoskeletal complaints, and sometimes “same complaint more symptoms not much changed”. There were also some unrelated attendances.
During 2014, there were approximately 24 attendances with Dr Saeed. There were various recorded reasons, with a note “same complaint more, symptoms not much changed” on approximately nine occasions. Shoulder pain was mentioned twice, and low back pain on about nine occasions.
At two attendances there was mention of a possible Centrelink Disability Support Pension. There were also attendances for “anxiety disorder”, “overweight”, eye symptoms and rash, lethargy, malaise or fever on about four occasions. On 5 December 2014:
“Reason for contact: anxiety disorder. Management: psychotherapy counselling. Advice
reassurance. Relaxation techniques. Think positive. Advice for psychosomatic symptoms.”
During the year, medications prescribed included anti-inflammatories, analgesics, the tricyclic Endep and the SSRI Lovan. In May 2014, she was referred to Dr Maniam, orthopaedic surgeon.

RE-EXAMINATION

Ms El Ayoubi was examined by both Medical Assessors Dawn Piebenga and Anup Mangipudi on 18 July 2023 at her residence to determine her reasonable and necessary domestic assistance needs due to physical injuries caused by the motor vehicle accident from 18 March 2013 to 18 June 2013 between 0-7 hours; and her reasonable and necessary domestic assistance needs between 0-7 hours per week from
18 March 2013 to the date of the MAS assessment and continuing for the remainder of the Applicant’s life expectancy due to psychological injuries caused by the motor vehicle accident;
“Pre-accident medical history and relevant personal details
Ms El Ayoubi informed us that she experienced some depression, stress and anxiety when in Year 12 whilst doing her HSC. She commented “I felt overwhelmed by the pressure of exams in 2008/2009 (Year 11 and 12). I just thought this was normal”. She claimed this was no longer an issue at the time of the accident and not causing any restriction with personal or domestic tasks.
She also reported that she bruises easily, which she thought may be due to a condition (Thalassaemia) she was diagnosed with when she was a child.
History of the motor accident
Ms El Ayoubi reported that she was involved in an accident on 18 March 2013 when she was driving her mother home from hospital. She informed us that the other driver failed to see her and collided into the front of her vehicle. Her vehicle was badly damaged and written off in the accident. Police and Ambulance attended the scene, but no-one was taken to hospital.
History of symptoms and treatment following the motor accident
After the accident, Ms El Ayoubi described feeling pain in her left knee, lower back and across her right shoulder and chest from the seatbelt. That night she had difficulty sleeping due to neck pain and stiffness, pain in her middle back, lower back and left knee.
She saw her General Practitioner (GP), Dr Saeed the following day and was given pain medication. She was referred for x-rays of her knees, spine and chest and given a referral to physiotherapy although she reportedly did not attend. She said ‘I pulled back from TAFE and I stopped going to the gym’. She confirmed ‘I couldn’t go initially because of my back and neck. I was in shock in the beginning. My focus was on my neck’.
In December 2014, her GP provided her with a Mental Health Care Plan for her to start counselling sessions with Mr Medhat Metry (Psychologist). She thinks she saw Mr Metry for about 5 months. She commented ‘I saw two counsellors. A lot of trauma from my childhood and issues with caring for my mum were all coming up’.
In 2014 and 2015, she also attended for chiropractic treatment and massage. She found this treatment helpful.
Details of any relevant injuries or conditions sustained since the motor accident
Ms El Ayoubi denied any subsequent injuries however prior review of the documentation had revealed that she injured her right knee on 8 May 2013 following a fall. The assessors asked her about this and she confirmed that it had happened but as it was over ten years ago, she had forgotten. She confirmed her knee had settled down with time and did not cause any ongoing restriction.
Current symptoms
Ms El Ayoubi described experiencing ‘numbness’ from her neck down her spine and into her right arm that she said feels like “cold water rushing down her spine and numbness and sometimes heat”. She said that her sleep is affected by pain. She said her main pain is in her right shoulder which continues to trouble her every day particularly when she bends down. She also reported pain in her lower back, between her shoulder blades, and in her neck. She did not spontaneously describe any psychological symptoms until prompted by the assessors at which point she said “I feel numb”. She did not elaborate further.
We explained to Ms El Ayoubi that we had been asked to assess her in regards to her physical and psychological injuries and that whilst we were interested in understanding her current symptoms which may include some physical symptoms, the medical reports we had been provided indicated that her physical injuries were soft tissue in nature and it was reasonable to expect that they would have settled somewhat. Ms El Ayobi confirmed that she understood this. We sought further clarification in regards to her psychological symptoms and she reiterated that she felt “numb”.
Ms El Ayoubi later commented that she did feel depressed at times and that she wasn’t motivated to do things. The Assessors pointed out that despite her claim of lack of motivation, she had managed to enrol in and pass two TAFE courses. During the interview, she also informed the assessors that she sometimes felt anxious when driving, however as her mother didn’t drive she had continued to drive, initially in the courtesy car supplied by the insurer and later in her own replacement car.
Current and proposed treatment
Ms El Ayoubi said that she is not currently having any treatment. She saw Renaldo who she described as a Physio, Chiropractor, Acupuncturist and Massage Therapist in mid-2022 for a few months. Ms El Ayoubi was paying for this privately. She had 5 sessions funded by Medicare and paid the gap. She then had 3 or 4 sessions which she paid in full. Ms El Ayoubi found this helpful noting she was ‘able to sleep better’, which meant she ‘woke up feeling better’. She commented ‘I felt better mentally and a little bit better physically’ however she wasn’t able to afford to keep going.
Ms Ayoubi was sitting in a massage chair for our assessment although it was not on. She said that she uses this chair three times a week for about 20 minutes. She stated, ‘Mum and I are both in pain. We purchased this chair for $1,500 in late 2019. We both find it helps with our pain’. She claims to have an Epsom salt bath most days again finding this helpful for her pain.
She said that apart from seeing her GP (Dr Saeed at Lakemba Medical Centre or
Dr Maher Milad at Campsie Medical & Dental Centre) for prescriptions, she has no other treatment.
Medication
Ms El Ayoubi stated ‘I take Advil for the pain. I normally take two tablets every two or three days but if I have a migraine I will take up to 4 tablets’. My doctor sometimes prescribes Osteomol Paracetamol (665mgh) or Apr-tramadol 50mg which I do take sometimes’.
She described that she also takes supplements including NAC [N Acetyl Cysteine] 100mg daily, Thyrosine 100mg daily, Osteo Vit D and Fat Blaster. She said ‘I’ve been taking things to help me with mental focus and concentration. I am taking a Pre-workout supplement to help with mental focus. I’ve been on it for a few years now’.
She is not prescribed, nor taking any anti-depressants. Ms Ayoubi reported ‘I was taking Lyrica but I gained a lot of weight. I stopped taking this three months ago’.
Weight Gain/Loss
At the time of the accident, Ms El Ayoubi stated she weighed 85kg. After the accident, her weight went up to 96kg. She was prescribed Duromine and lost weight, getting down to 68kg. As soon as she went off Duromine, her weight returned. Her GP
(Dr Saeed) started her on Ozempic (0.5mg) last Thursday and she has lost three kilograms already. Ms El Ayoubi stated she also uses a Laxative once or twice a week to manage her constipation which she understands might get worse with Ozempic.
When Ms Ayoubi lost weight in the past she felt “lightheaded and couldn’t concentrate” claiming this was because she had lost weight so quickly. She said “my doctor wants to monitor how much I am losing.
Before the accident, Ms El Ayoubi claimed that she was doing at least an hour of workout at home every day. She said “I have a treadmill at home. I can do 15 to 25 minutes on this. I use it twice a week. I want to lose the weight so I can get back to TAFE”. Numerous other items of gym equipment were observed in the house, however Ms El Ayoubi noted they belonged to her sister who had recently undergone weight loss surgery and was motivated to tone up.
Social situation
At the time of the accident; Ms El Ayoub was 21 years old. She was living at Chester Hill. She said ‘I was living with my Mum’s best friend. My sister and Mum were living in a unit in Lakemba. My sister (Maysa, age 29) has always lived with Mum. I would travel from Chester Hill to Mum in Lakemba every day’. Ms El Ayoubi was in receipt of Centrelink’s Carer’s Benefit claiming “I was doing everything; showering Mum, cleaning, cooking, laundry, shopping. I would take Mum to her appointments. Mum has diabetes. She is insulin-dependent. Mum had weight loss surgery [gastric sleeve] in 2009 and 2011 but it wasn’t successful. She also has arthritis in both hands. I’d been Mum’s paid carer since 2010”.
After the accident; Ms Ayoubi stated, ‘A few months or maybe a year after the accident, I moved back to live with my Mum’. We lived in Willero Street, Lakemba. In 2015 we moved to Unit 1 in the same building. We moved again in 2016 and we have been living here at Campsie since then. Ms El Ayobi could not recall who else lived in the household noting ‘my cousin was living here at one stage and my sister moved out for a while because we had a dispute’.
Home Environment
Ms El Ayoubi lives with her mother in a three bedroom, one bathroom privately rented house. The home is singe level throughout and accessed via a single concrete driveway. There is a large, open plan kitchen with dining room and living room (currently home gym). The kitchen has wooden cabinetry and a U-shaped bench with a wall oven (used for storage) and dishwasher. There was a separate lounge room (which is where the interview portion of this assessment was conducted). There is a double sliding door (jammed) at the rear that provides access to a covered patio with 3 steps leading down to the lawn and garden area. The rear garden was overgrown and contained many items making it impossible to mow. The front lawn was small and also very overgrown. It was obvious that lawn mowing and gardening had not been completed for some time.
Ms El Ayoubi occupies a bedroom at the front of the house with a double bed, desk, dressing table and built-in wardrobe with mirrored doors.
Education
Ms Ayoubi was enrolled in a Diploma in Furniture Design in Lidcombe at the time of the accident (2013). She did not complete this. In 2017, she started a Diploma in Fashion (Business) although she said she had to withdraw as she was experiencing dizziness. In 2018, Ms Ayoubi started a Diploma in Fashion (Merchandising) at Macquarie Fields, which she completed in 2019. She claimed it took her two years to do a one year course.
Ms Ayoubi said that she has enrolled in a nail technician course which was due to start the day of our assessment. This is a 6-month course at Bankstown TAFE. Ms Ayoubi indicated that she is planning to set up a nail salon and run a small business from home.
Employment
At the time of the accident, Ms Ayoubi was her Mother’s paid carer.
After the accident, Ms Ayoub said that her injuries rendered her unable to care for her mother. Her sister allegedly took this role although Centrelink records revealed that Ms Ayoubi continued to receive the Carers Payment and Carers Benefit for a further 18 months. The assessors brought this to Ms Ayoubi’s attention and she informed us that she was unaware she needed to notify Centrelink that she was unable to care for her mother but that once this had been brought to her attention she notified Centrelink and changed to unemployment benefits. Her sister subsequently claimed carers benefits for her role as her mother’s carer.
Ms Ayoubi said that she had aspirations to buy a house. She believes this will be possible if she pursues her fashion business ideas. She indicated “I am wanting to fly overseas and get menswear made overseas and then sell it here. I had travelled to Lebanon with my Mum two or three times before the accident”.
CLINICAL EXAMINATION
Present at the assessment were:
·   Maggie El Ayoubi - Applicant
·   Asma El Ayoubi - Applicant’s mother
·   Dawn Piebenga - Occupational Therapist/PIC Assessor
·   Anup Mangipudi - Occupational Therapist/PIC Assessor
Asma El Ayoub was present in the house although did not contribute to the assessment.
Our clinical examination consisted of taking a subjective account from Ms El Ayoubi as to her current symptoms and limitations in day to day functioning, objective physical assessment, clinical observation of her mood and emotional functioning and analysis of her performing functional daily living tasks in her home environment.
Presentation
Ms El Ayoubi was wearing slippers and dressed in black (face mask, leggings and Oodie – a cross between a giant hoodie sweatshirt and blanket) She wore the hood up and kept her hands in her pockets for most of the assessment. She was seated in her massage chair for up to 40 minutes at a time, standing up to retrieve things (eg: medication) as opposed to a need to change position. She was observed to transfer in/out of her chair independently and mobilise around her home environment without difficulty. She demonstrated tasks such as reaching to ankle height to open a drawer and simulating hanging washing on a drying rack. All movements were performed with ease although she complained of increased pain in her right shoulder. She held her right hand protectively by her side and said this was because of her right shoulder injury.
Activities of Daily Living Status

ACTIVITY

REPORTED FUNCTIONAL STATUS

(PRE-INJURY)

REPORTED FUNCTIONAL STATUS

(POST-INJURY)

Eating and Drinking Toileting, Dressing, Grooming & Showering

Not restricted in anything.

Ms El Ayoubi reported that she occasionally has difficulty with dressing. She chooses looser fitting items to wear and finds some items awkward to put on.

Ms El Ayoubi can cut her fingernails but stated that she can’t reach her toenails and her sister cuts these for her once a month noting it would take less than 5 minutes.

Although Ms El Ayoubi reported she is unable to cut her toenails, she demonstrated that she could reach her feet when putting her slippers on. She stated that her family do not remind her to shower or wash her hair although admitted she does not always shower every day.

Consistent with what she told Assessor Castle-Burton, Ms El Ayoubi claimed that she may neglect her personal care however she told us that her family do not prompt her to attend to this. This is consistent with the fact that she presented as somewhat dishevelled at both assessments conducted at her home, although notably this has not been described in other medical reports.

Cooking and Meal Preparation

Ms El Ayoubi claimed “we would eat a lot of takeaway but I could cook for myself and my mother”. She added ‘we might get takeaways a couple of times a week’.

Ms El Ayoubi stated, ‘If I was cooking Lebanese, it would take me 1 to 2 hours, depending on the meal. Mum would instruct me. She was teaching me to cook. My sister was also cooking sometimes. She would cook once a week or so’.

Ms El Ayoubi claimed that after the accident, the physical impact of the injuries meant she couldn’t cook initially. She would get a family takeaway meal and drive to her mother’s place. She thinks she was given a car by the insurance company, “I was driving the courtesy car for a while before I got the payout. It took me about 25 minutes to get from Chester Hill to Lakemba”.

Ms El Ayoubi continued to get takeaway meals for a while. Once she moved in with her mother and sister, her sister continued to do some cooking, and the family ate takeaway meals at other times. Ms El Ayoubi reported that they mostly lived on takeaway.

Ms El Ayoubi is still reliant on takeaway food and purchases it every day. Her sister and Mother share the cost of this. She reported that she can make simple meals. She said she could reheat food, cook eggs, make toast, and cook garlic bread and meat pies in the microwave. She also purchases pre-prepared meals which she takes out of the freezer and heat up.

Washing up

Ms El Ayoubi did most of the washing up. Her Mother gets allergies, so she tends not to do the dishes. Her sister did the washing up if Ms El Ayoubi needed to leave early.

After the accident, there was much less washing because the family ate takeaway. Her sister would do the few things like wash coffee cups. Ms El Ayoubi would also do a coffee cup or a few plates. If her sister had cooked spaghetti bolognaise, she would wash the dishes.

Ms El Ayoubi stated, ‘I can’t do the dishes because I get numbness down right arm and am scared of dropping things. I feel I need to do things with both hands. I am left-handed so I could do them with my left hand’.

Shopping

Ms El Ayoubi reported that she was doing all the shopping. She would go once a week for bulk shop and in between for smaller shopping. She would take her Mother, but her sister wouldn’t go.

After the accident, Ms El Ayoubi’s sister or cousin would take her and her Mother shopping. Ms El Ayoubi didn’t always go with them, but ‘they would take Mum’. Ms El Ayoubi went every two weeks. She claimed she struggled with the heavy lifting and carrying with her right hand but could lift and carry with her left shoulder. Her sister and cousin continued to help with shopping. Ms El Ayoubi could get incidentals like bread or cat food. She would go when her cat food ran out as she couldn’t wait for a delivery. During the first lockdown, she began shopping online and has continued to shop online since then. Ms El Ayoubi shops online once or twice a month, claiming, ‘I can manage with the online shopping’.

Laundry

Ms El Ayoubi was doing the laundry at the time of the accident for her mother and her sister, ‘My sister was studying at Bankstown. I also did my own laundry at the house where I was living. I’d say I was doing one load of laundry every second day. I was also doing an extra load at my place. We had an outside drying rack. We didn’t have a dryer’.

Ms El Ayoubi had to rely on somebody else to do her laundry. She would take her laundry to her mother and sister, and they would wash it for her. She could sort and load the washing machine but found it was too heavy to take out of the machine (top loader). Ms El Ayoubi said, ‘It was heavier to carry. I couldn’t carry it with my left hand. I could put it in a basket and kick it with my feet if my sister wasn’t there. The outdoor rack was on the balcony and above shoulder height’.

Ms El Ayoubi said they also had lower drying racks before the accident but didn’t tend to use them as much. She said she could handle smaller things on the portable racks but that her sister would hang heavier items like pants and jeans, ‘I can hang a towel out because I can just throw it over. I can’t do things like jeans that need to be shaken out. If something needs to be shaken out, my sister will do this’.

Bed-making, including changing linen

Ms El Ayoubi did her Mother’s bed about once every three weeks (10 minutes). She also did her bed (5 minutes) once a month. Her sister did her bed. Before the accident, Ms El Ayoubi slept on a single bed. Her Mother slept on a Queen sized bed.

Ms El Ayoubi’s sister changed her Mother’s bed. When Ms El Ayoubi moved back home, her sister would strip and change her sheets as “it was a bit of a hassle for me. It was heavy, and I found it hard for my right shoulder”.

Ms El Ayoubi purchased a double bed after she moved back home.

Ms El Ayoubi can strip the bed herself, but her sister will come and help her to make the bed. She ‘can’t do this herself; this task needs two people’. Ms El Ayoubi thinks it is taking her sister 20 minutes to help her and another 20 minutes to help with her Mother’s bed. Ms El Ayoubi claimed, ‘My sister does my Mum’s bed every other week. I haven’t changed my sheets in the last four to six months’.

Light daily cleaning and tidying (wiping down benches, light dusting)

Ms El Ayoubi’s mum could do the sweeping, and Ms El Ayoubi did the rest of the cleaning. She would wipe the surfaces, sweep and mop (2x week – 25 mins) and vacuum (2x – 20 mins), just the bedrooms were carpeted). She would clean the bathrooms twice a week (45 mins). She would clean the kitchen once a week (1 hour) (tabletop, kitchen benches, stove top, fridge).

Ms El Ayoubi said that her sister was doing the household cleaning and struggling to keep up. She was “doing less” than what Ms El Ayoubi did. Ms El Ayoubi said the housework hasn’t been done to the same level, claiming her sister spends about three hours a week cleaning.

Ms El Ayoubi commented “I can sweep as long as somebody else bends to pick it up” as she claims her lower back injury prevents her from bending down. Her sister does the mopping and usually cleans the bathroom (reportedly every two weeks).

Ms El Ayoubi stated, “My sister finished her make-up certificate last year and has also done lashes. She’s now doing beauty services. She has done some casual work, but she stopped working during COVID. She is looking for work. She [sister] wants to get a job in a factory that picks and packs makeup so if there is any damaged stock, she can take it”.

Weekly cleaning (vacuum/sweep/ mop and cleaning bathroom)

Garbage management

Ms El Ayoubi’s mother takes the rubbish out. She does it in little bags. Our neighbour took the bins out.

Ms El Ayoubi’s Mother has continued to do this.

Ms El Ayoubi can take the bins out if they are not too heavy. Otherwise, her sister will do it. She can bring them in when they are empty.

Gardening and lawn mowing

Ms El Ayoubi did not do any gardening or lawn mowing.

When Ms El Ayoubi moved into her current house (2016), her cousin lived with them. He did the lawns and gardening. He moved out in 2018, and Ms El Ayoubi’s sister took this on. Her cousin taught her how to cut the grass. Ms El Ayoubi did try to push the lawn mower, but it was too heavy. She stated, ‘It’s just my shoulder. I don’t want to put too much pressure on my shoulder. My Mum likes to do the gardening; she likes to plant and look after the garden’.

Car Cleaning

Ms El Ayoubi would wash her car manually once a week or every two weeks.

Ms El Ayoubi can wet her car using a hose and soap it up using her left hand, and then hose it off. She reported that she has only been doing this every four to six months because of her depression. She believes that ‘you can cop a fine if it is very dusty’.

Property Maintenance

Landlord has always been responsible for maintenance.

No change.

Mail Collection

Ms El Ayoubi’s Mother does this.

No change.

Medication Management

No medication.

She can manage this herself.

Community Access

Ms El Ayoubi was driving her own car.

Ms El Ayoubi reported, ‘My car was written off. I did replace it so I do have my own car. I take Mum to the local shops and I can also take her to her appointments. I can’t really remember but I think I had a courtesy car in the beginning. I had to wait until my car was paid out, and then I had to find a replacement”. I have continued to drive “I have to drive because Mum doesn’t drive’.

ACTIVITY	REPORTED FUNCTIONAL STATUS (PRE-INJURY)	REPORTED FUNCTIONAL STATUS (POST-INJURY)
Eating and Drinking Toileting, Dressing, Grooming & Showering	Not restricted in anything.	Ms El Ayoubi reported that she occasionally has difficulty with dressing. She chooses looser fitting items to wear and finds some items awkward to put on. Ms El Ayoubi can cut her fingernails but stated that she can’t reach her toenails and her sister cuts these for her once a month noting it would take less than 5 minutes. Although Ms El Ayoubi reported she is unable to cut her toenails, she demonstrated that she could reach her feet when putting her slippers on. She stated that her family do not remind her to shower or wash her hair although admitted she does not always shower every day. Consistent with what she told Assessor Castle-Burton, Ms El Ayoubi claimed that she may neglect her personal care however she told us that her family do not prompt her to attend to this. This is consistent with the fact that she presented as somewhat dishevelled at both assessments conducted at her home, although notably this has not been described in other medical reports.
Cooking and Meal Preparation	Ms El Ayoubi claimed “we would eat a lot of takeaway but I could cook for myself and my mother”. She added ‘we might get takeaways a couple of times a week’. Ms El Ayoubi stated, ‘If I was cooking Lebanese, it would take me 1 to 2 hours, depending on the meal. Mum would instruct me. She was teaching me to cook. My sister was also cooking sometimes. She would cook once a week or so’.	Ms El Ayoubi claimed that after the accident, the physical impact of the injuries meant she couldn’t cook initially. She would get a family takeaway meal and drive to her mother’s place. She thinks she was given a car by the insurance company, “I was driving the courtesy car for a while before I got the payout. It took me about 25 minutes to get from Chester Hill to Lakemba”. Ms El Ayoubi continued to get takeaway meals for a while. Once she moved in with her mother and sister, her sister continued to do some cooking, and the family ate takeaway meals at other times. Ms El Ayoubi reported that they mostly lived on takeaway. Ms El Ayoubi is still reliant on takeaway food and purchases it every day. Her sister and Mother share the cost of this. She reported that she can make simple meals. She said she could reheat food, cook eggs, make toast, and cook garlic bread and meat pies in the microwave. She also purchases pre-prepared meals which she takes out of the freezer and heat up.
Washing up	Ms El Ayoubi did most of the washing up. Her Mother gets allergies, so she tends not to do the dishes. Her sister did the washing up if Ms El Ayoubi needed to leave early.	After the accident, there was much less washing because the family ate takeaway. Her sister would do the few things like wash coffee cups. Ms El Ayoubi would also do a coffee cup or a few plates. If her sister had cooked spaghetti bolognaise, she would wash the dishes. Ms El Ayoubi stated, ‘I can’t do the dishes because I get numbness down right arm and am scared of dropping things. I feel I need to do things with both hands. I am left-handed so I could do them with my left hand’.
Shopping	Ms El Ayoubi reported that she was doing all the shopping. She would go once a week for bulk shop and in between for smaller shopping. She would take her Mother, but her sister wouldn’t go.	After the accident, Ms El Ayoubi’s sister or cousin would take her and her Mother shopping. Ms El Ayoubi didn’t always go with them, but ‘they would take Mum’. Ms El Ayoubi went every two weeks. She claimed she struggled with the heavy lifting and carrying with her right hand but could lift and carry with her left shoulder. Her sister and cousin continued to help with shopping. Ms El Ayoubi could get incidentals like bread or cat food. She would go when her cat food ran out as she couldn’t wait for a delivery. During the first lockdown, she began shopping online and has continued to shop online since then. Ms El Ayoubi shops online once or twice a month, claiming, ‘I can manage with the online shopping’.
Laundry	Ms El Ayoubi was doing the laundry at the time of the accident for her mother and her sister, ‘My sister was studying at Bankstown. I also did my own laundry at the house where I was living. I’d say I was doing one load of laundry every second day. I was also doing an extra load at my place. We had an outside drying rack. We didn’t have a dryer’.	Ms El Ayoubi had to rely on somebody else to do her laundry. She would take her laundry to her mother and sister, and they would wash it for her. She could sort and load the washing machine but found it was too heavy to take out of the machine (top loader). Ms El Ayoubi said, ‘It was heavier to carry. I couldn’t carry it with my left hand. I could put it in a basket and kick it with my feet if my sister wasn’t there. The outdoor rack was on the balcony and above shoulder height’. Ms El Ayoubi said they also had lower drying racks before the accident but didn’t tend to use them as much. She said she could handle smaller things on the portable racks but that her sister would hang heavier items like pants and jeans, ‘I can hang a towel out because I can just throw it over. I can’t do things like jeans that need to be shaken out. If something needs to be shaken out, my sister will do this’.
Bed-making, including changing linen	Ms El Ayoubi did her Mother’s bed about once every three weeks (10 minutes). She also did her bed (5 minutes) once a month. Her sister did her bed. Before the accident, Ms El Ayoubi slept on a single bed. Her Mother slept on a Queen sized bed.	Ms El Ayoubi’s sister changed her Mother’s bed. When Ms El Ayoubi moved back home, her sister would strip and change her sheets as “it was a bit of a hassle for me. It was heavy, and I found it hard for my right shoulder”. Ms El Ayoubi purchased a double bed after she moved back home. Ms El Ayoubi can strip the bed herself, but her sister will come and help her to make the bed. She ‘can’t do this herself; this task needs two people’. Ms El Ayoubi thinks it is taking her sister 20 minutes to help her and another 20 minutes to help with her Mother’s bed. Ms El Ayoubi claimed, ‘My sister does my Mum’s bed every other week. I haven’t changed my sheets in the last four to six months’.
Light daily cleaning and tidying (wiping down benches, light dusting)	Ms El Ayoubi’s mum could do the sweeping, and Ms El Ayoubi did the rest of the cleaning. She would wipe the surfaces, sweep and mop (2x week – 25 mins) and vacuum (2x – 20 mins), just the bedrooms were carpeted). She would clean the bathrooms twice a week (45 mins). She would clean the kitchen once a week (1 hour) (tabletop, kitchen benches, stove top, fridge).	Ms El Ayoubi said that her sister was doing the household cleaning and struggling to keep up. She was “doing less” than what Ms El Ayoubi did. Ms El Ayoubi said the housework hasn’t been done to the same level, claiming her sister spends about three hours a week cleaning. Ms El Ayoubi commented “I can sweep as long as somebody else bends to pick it up” as she claims her lower back injury prevents her from bending down. Her sister does the mopping and usually cleans the bathroom (reportedly every two weeks). Ms El Ayoubi stated, “My sister finished her make-up certificate last year and has also done lashes. She’s now doing beauty services. She has done some casual work, but she stopped working during COVID. She is looking for work. She [sister] wants to get a job in a factory that picks and packs makeup so if there is any damaged stock, she can take it”.
Weekly cleaning (vacuum/sweep/ mop and cleaning bathroom)
Garbage management	Ms El Ayoubi’s mother takes the rubbish out. She does it in little bags. Our neighbour took the bins out.	Ms El Ayoubi’s Mother has continued to do this. Ms El Ayoubi can take the bins out if they are not too heavy. Otherwise, her sister will do it. She can bring them in when they are empty.
Gardening and lawn mowing	Ms El Ayoubi did not do any gardening or lawn mowing.	When Ms El Ayoubi moved into her current house (2016), her cousin lived with them. He did the lawns and gardening. He moved out in 2018, and Ms El Ayoubi’s sister took this on. Her cousin taught her how to cut the grass. Ms El Ayoubi did try to push the lawn mower, but it was too heavy. She stated, ‘It’s just my shoulder. I don’t want to put too much pressure on my shoulder. My Mum likes to do the gardening; she likes to plant and look after the garden’.
Car Cleaning	Ms El Ayoubi would wash her car manually once a week or every two weeks.	Ms El Ayoubi can wet her car using a hose and soap it up using her left hand, and then hose it off. She reported that she has only been doing this every four to six months because of her depression. She believes that ‘you can cop a fine if it is very dusty’.
Property Maintenance	Landlord has always been responsible for maintenance.	No change.
Mail Collection	Ms El Ayoubi’s Mother does this.	No change.
Medication Management	No medication.	She can manage this herself.
Community Access	Ms El Ayoubi was driving her own car.	Ms El Ayoubi reported, ‘My car was written off. I did replace it so I do have my own car. I take Mum to the local shops and I can also take her to her appointments. I can’t really remember but I think I had a courtesy car in the beginning. I had to wait until my car was paid out, and then I had to find a replacement”. I have continued to drive “I have to drive because Mum doesn’t drive’.

Comments on consistency
There were some inconsistencies with Ms El Ayoubi’s presentation, during the assessment when compared with the medical documentation forwarded to us. Those inconsistencies were brought to Ms El Ayoubi’s attention during the assessment. Her responses have been documented and considered when preparing the reasons below. The main inconsistency is that Ms El Ayoubi repeatedly referred to her physical injuries and symptoms and she did not describe psychological symptoms affecting her ability to perform personal care or domestic tasks.
DETERMINATIONS – TREATMENT
Treatment and Care – Reasonable and Necessary
Following review of the evidence and our examination, the following care is considered reasonable and necessary to meet Ms El Ayoubi’s current injury-related needs:
·   Heavy Shopping – 0.25 hours per week
To carry heavy or bulk shopping items
·   Heavy household cleaning – 1.0 hour per week
To complete tasks involving scrubbing, vacuuming and moving furniture
·   Laundry – 0.25 hours per week
To hang out heavy laundry items including sheets and towels
·   Changing Linen and Bed Making – 0.25 hours per week
To remake the strip and change the linen on her own bed and her mother’s bed
·   Driving – 1.0 hour per week
Although Ms El Ayoubi informed us she did continue to drive short distances; family members did assist with taking her mother to appointments and driving her mother to the shops.

We also support a total of 2.75 hours per week, as above, of domestic assistance for heavier household tasks as a result of her physical injuries. Consistent with Medical Assessor Castle-Burton we do not consider Ms El Ayoubi had a need for domestic assistance due to her physical injuries caused by the accident beyond 18 June 2013.
In relation to Ms El Ayoubi’s reasonable and necessary domestic assistance needs from the date of the accident (18 March 2013) to the date of our assessment, due to psychological injuries, we have relied on an extensive review of all of the medical documentation provided. In particular we note the determination of Assessor Takyar who issued a certificate on 8 April 2019. Assessor Takyar considered that Ms El Ayoubi met the ‘DSM-5 criteria for panic disorder with agoraphobia, a general anxiety disorder and a major depressive disorder’. Despite this diagnosis, Ms El Ayoubi was unable to articulate to us, how her psychological symptoms affected her day-to-day tasks within the home and in the community. Similar to Medical Assessor Castle-Burton we were struck by the inconsistency of a diagnosis of panic disorder with agoraphobia considering Me El Ayoubi was able to leave the house to attend TAFE and she informed us she continued to drive locally and could take her mother to her appointments etc. We also noted that in a number of the medical assessments (Medical Assessors Wilding, Wijetunga and Takyar), Ms El Ayoubi attended the appointments unaccompanied. In her Job Capacity Assessment on 12 January 2015, Clinical Psychologist (Louise Ige) noted Ms El Ayoubi confirmed she “can use public transport if needed”.
We note Medical Assessor Castle-Burton considered there was a reasonable and necessary need for domestic assistance from the date of accident to the date of her assessment, based on Ms El Ayoubi’s psychological injuries. As such she supported 3.25 hours per week from the date of the accident for the applicants life expectancy. This consisted of:
·   Self-Care – 0.5 hours per week
Prompting to engage in routine of personal care and hygiene
·   Meal Preparation – 2.0 hours per week
Bulk meal preparation due to poor motivation and initiation to prepare meals
·   Cleaning and Organisation – 0.5 hours per week
To prompt and assist her to maintain a clean and hygienic environment
·   Laundry – 0.25 hours per week
To prompt her to ensure that her clothes and bedlinen are washed in a timely fashion
Ms El Ayobi was living with her mother’s friend at Chester Hill. She informed us that she has not received prompting from any family members for personal care and hygiene, therefore gratuitous assistance from the date of her accident until the date of our assessment was not provided. We do not support future assistance for self-care as Ms El Ayoubi informed us that she was able to complete self care tasks without the need for prompting or assistance from the family members.
In regards to Meal Preparation, Ms Castle-Burton documented that the family now eat Uber eats shakes and fast food. This does not align with her recommendation of two hours per week gratuitous assistance for bulk meal preparation as this assistance was not provided gratuitously in the past. Ms El Ayoubi indicated that the family still mostly rely on takeaway and pre-prepared meals, although noted this was also the case before her accident. She indicated that she is capable of preparing simple meals and that any restriction she has with meal preparation relate to her right shoulder. We do not support past or future assistance for meal preparation as Ms El Ayoubi informed us she is able to complete basic meal preparation. We would encourage her to continue to participate in meal preparation tasks and can progress to be independent in meal preparation, cooking and dish washing tasks at home In regards to Cleaning and Organisation and Laundry – Ms Castle-Burton supported assistance for prompting to assist Me El Ayoubi to maintain a clean and hygienic environment. In contrast, Ms El Ayoubi apologised that her room was unkept and that her sheets had not been washed. This was similar to what Ms Castle-Burton witnessed and is evidence that prompting has not occurred to date. Ms El Ayoubi confirmed that any and all restrictions in relation to cleaning relate to her right shoulder and lower back. We do not support past or future assistance for cleaning and organisation or laundry as Me El Ayoubi informed us she is able to attend to light cleaning tasks without the need for prompting.
On this basis, we do not support past or future assistance for Domestic Tasks based on Ms El Ayoubi’s psychological injuries.
REASONS
Assessors Piebenga and Mangapudi note the criteria for reasonable and necessary treatment are set out in the State Insurance Regulatory Authority (SIRA) Resources titled Reasonable and Necessary Criteria as follows:
•    Is the treatment provided to date and proposed treatment directly related to the injuries sustained in the motor vehicle accident
•    Was the treatment provided or is the proposed treatment aimed at helping the injured person get back to their usual duties
•    Was the treatment provided or is the proposed treatment appropriate for the type of injury
•    Was the treatment provided or is the proposed treatment to be provided by an appropriately qualified health professional
•    Was the treatment provided or is the proposed treatment cost effective.
Physical Injuries
We have taken into consideration and relied on the various MAS assessments and determinations in making our determination – specifically the determination of the MAS Medical Review Panel Certificate of 4 December 2019, which revoked the Certificate of 1 March 2019 of Medical Assessor Wijetunga and issued a new Certificate determining that the physical injuries gave rise to a need for domestic assistance for tasks such as washing, cooking, cleaning, dusting, laundry, ironing, shopping, driving, vacuuming and mopping and was casually related to the injuries (soft tissue injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder injury and left knee) sustained in the subject accident and are reasonable and necessary in the circumstances
We note that the Review Panel considered all of the physical injuries to have resolved by the time of their assessment but considered that some limited domestic assistance would have been causally related for a short period following the accident and considered this requirement would have extended for a period of 3 months (from 18 March 2013 to 18 June 2013). Medical Assessor Castle-Burton chose the date 18 June 2013 to end the initial recovery period. Although 12 weeks post-accident is 10 June 2013, ending that period of 18 June 2013 is considered reasonable.
Assessor Castle-Burton considered that Ms El Ayoubi would have been restricted from completing heavier domestic tasks including vacuuming, mopping floors, cleaning bathrooms, carrying heavy shopping, managing heavy laundry such as sheets and towels during the first three months noting her diagnosis of soft tissue injuries. Assessors Piebenga and Mangipudi agree.
Medical Assessors Piebenga and Mangipudi note that there is strong evidence[1] to support the recommendation to stay active to optimise recovery and thus discourage voluntary restriction of activity. Whilst we note that it is important to stay within acceptable pain limits we emphasize that long periods of inactivity will adversely affect recovery
[1]    Injuries
Medical Assessor Piebenga and Mangipudi note treatment guidelines for Adjustment Disorders advise a focus on self-efficacy and behavioural activation to promote a more active versus passive role and consider continuing a routine of domestic tasks would have provided remedial activity consistent with these guidelines. We also note the relationship between low levels of daily-living activities and depression[2] and the strong correlation between physical activity and perceived health, functional fitness and mood. In particular self limiting behaviour including withdrawal or changes in usual roles or occupations can lead to increased dependency, lack of confidence and depression. The research suggests that people with depression benefit from structure and planning their day to involve purposeful activities including exercise, socialisation and daily tasks. And that participating in daily tasks assists with maintaining a structured routine and also provides activity scheduling, which reduces demands on motivation. These are appropriate tools for managing symptoms of depression .
We do not consider the proposed treatment (namely past and future domestic assistance) is required due to Ms El Ayoubi’s psychological injuries.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned[3]. The Panel adopts the extensive reasons of the joint assessment findings of Medical Assessor Piebenga and Medical Assessor Mangipudi
The Panel is not required to choose between competing opinions and is required to form its own opinions[4]. The two Medical Assessors have explained the basis of their assessment which are different from those provided by Medical Assessor Castle-Burton.
CONCLUSION
For these reasons, the Panel concludes that the Certificate issued by Medical Assessor Castle-Burton dated 16 August 2022 should be revoked.
The Panel finds it is reasonable the following amount of domestic assistance was provided:
·   2.75 hours per week from 18 March 2013 to 18 July 2013 (13 weeks and 2 days)”
[2]    “Health benefits of physical activity: the evidence” Warburton, D; Nicol, C and Bredin S. CMAJ March 14, 2006 vol. 174 no. 6 doi: 10.1503/cmaj.051351.
[3]    Section 7.26(6) of the MAI Act.
[4]    Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Limited v Marsh [2021] NSWCA 31.

DETERMINATION

The Certificate issued by Medical Assessor Castle-Burton dated 16 August 2022 is revoked.
The Panel finds it is reasonable the following amount of domestic assistance was provided:
· 2.75 hours per week from 18 March 2013 to 18 July 2013 (13 weeks and 2 days).
The Panel finds that there is no need for the provision of domestic assistance to the claimant for the future.

[2023] NSWPICMP 477

27 September 2023