Insurance Australia Limited t/as NRMA Insurance v Strong

[2023] NSWPICMP 365

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Strong [2023] NSWPICMP 365

CLAIMANT:

Donna Strong

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Terence O’Riain

MEDICAL ASSESSOR:

Clive Kenna

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

1 August 2023

CATCHWORDS:

MOTOR ACCIDENTS –   Motor Accident Injuries Act 2017; medical dispute about permanent impairment and treatment; assessment review under section 7.26; claimant injured neck, lumbar spine and right wrist; pre-accident conditions requiring cleaning and gardening services; original Medical Assessor Wijetunga assessed 18% permanent impairment and approved treatment; Sydney Trains v Batshon considered; Held – accident mechanism consistent with injuries claimed; 2019 accident aggravated pre-accident cervical and lumbar spine condition, which has now resolved; claimant sustained traumatic wrist injury; accident did not cause injuries that required additional cleaning and gardening services; treatment not necessary and reasonable; permanent impairment less than 10%; previous impairment and treatment certificates revoked.

DETERMINATIONS MADE:  

DETERMINATION

Medical Assessment – Permanent impairment

Treatment and Care – Causation

Treatment and Care – Reasonable and Necessary

Review Panel Assessment of Degree of Permanent Impairment
Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017
(the MAI Act)

The Review Panel revokes the certificate dated 3 August 2022 and issues a new certificate determining that:
The motor accident caused the following injuries, which give rise to a permanent impairment which is 5% and IS NOT GREATER THAN 10%:

·     Right wrist

Review Panel Assessment of Treatment and Care - Causation
Replacement Certificate issued under s 7.23(1) of the MAI Act

The Review Panel revokes the certificate dated 3 August 2022 and issues a new certificate determining that:

The following treatment and care:

·        the proposed gardening services, and

·        the proposed cleaning services

DOES NOT RELATE TO THE INJURY the motor accident caused

Review Panel Assessment of Treatment and Care – Reasonable and Necessary
Replacement Certificate issued under s 7.23(1) of MAI Act

The Review Panel revokes the certificate dated 3 August 2022 and issues a new certificate determining that:
The following treatment and care:

·        the proposed gardening services, and

·        the proposed cleaning services.

IS NOT REASONABLE AND NECESSARY in the circumstances

REASONS

Background

1. Ms Donna Strong (the claimant) suffered injury in a motor accident on 10 April 2019, (the 2019 accident) when she was travelling from work on the Hume Highway. She drove an automatic Toyota sedan (2007). She was travelling in the middle lane with a bus in the left lane and noted a car driving haphazardly, overtaking through the lanes.

2. She braked in anticipation of this vehicle overtaking her, and as she did so her vehicle was rear ended. She reports that the vehicle behind her was written off and the lady had been trapped in the car. Police and ambulance attended and the police drove her home in her vehicle. She reports that the vehicle remained driveable for a few days after and the cost of repair was around $3,600.

3. The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act)

4. There was a dispute between the claimant and the insurer about:

   (a) the degree of permanent impairment under Schedule 2 s 2(a) of the MAI Act;

   (b) whether any treatment and care relates to an injury caused by the accident under Schedule 2 s 2(b) of the MAI Act, and

   (c) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2 s 2(b) of the MAI Act.

5. Medical Assessor Nelukshi Wijetunga examined Ms Strong for the Personal Injury Commission (the Commission) on 1 August 2022 and produced a certificate dated 3 August 2022.

6. The insurer applied to refer the medical assessment to a Review Panel within 28 days after the parties were issued with the original certificate.[1] The applicant’s ground for review–among other items–was that the Medical Assessor failed to provide adequate reasoning for not deducting any pre-existing impairment.

   [1] Section 7.26(10) of the MAI Act.

7. On 20 October 2020, the President’s delegate referred the medical assessment to a Review Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]

   [2] Section 7.26(5) of the MAI Act.

Review conduct

1. Part 5 of the Personal Injury Commission Act, 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a merit reviewer or a medical assessor.[3]

   [3] Section 41(2) of the PIC Act.

2. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]

   [4] Rule 128 of the PIC Rules

3. The assessment of permanent impairment under the MAI Act is undertaken in accordance with version 8.2 of the Motor Accidents Guidelines (Guidelines).[5] The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). The Guidelines prevail where there is any difference between AMA 4 and the Guidelines.[6]

   [5] The Guidelines are issued pursuant to s 10.2 of the MAI Act. Section 10.1 of the MAI Act provides that the assessment of the degree of permanent impairment is to follow the Guidelines.

   [6] Clause 6.2 of the Guidelines.

4. The review is a new assessment of all matters with which the medical assessment is concerned.

5. The Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[7] and Insurance Australia Ltd v Marsh.[8]

   [7] [2021] NSWCA 287 at [40], [41] and [45].

   [8] [2022] NSWCA 31 at [11], [21] and [64].

6. On 23 February 2023, the Panel met via Teams.

7. The Review Panel members directed the parties, pursuant to rule 70 of the Commission Rules to respond jointly to the following directions by 5pm on 14 March 2023.

8. The Panel directed the parties to advise whether they agreed the Panel could adopt Medical Assessor Wijetunga’s findings and conclusions that the motor accident did not cause the following injuries

   (a)   left knee;

   (b)   right knee, and

   (c)   left shoulder.

1. The parties could not agree on the breadth of the review so the Panel resolved to conduct an assessment regarding causation and impairment of each claimed injury.

2. The Panel considered Sydney Trains v Batshon.[9]

   [9] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).

3. The case does not mandate a re-examination in every motor accident case but talks of the ‘default position’ which ‘generally’ applies and would apply if a party objected to an assessment on the papers. The judge’s observations also suggests not re-examining is an option where there is no dispute, ambiguity or uncertainty about findings.

4. As there was considerable dispute about the original Medical Assessor’s findings on permanent impairment and treatment, it was decided re-examination was necessary to perform the impairment testing and question Ms Strong on the services she had before the accident.

5. Medical Assessor Kenna arranged to conduct this examination on behalf of the Panel at his rooms on 16 March 2023.

6. The claimant was directed to bring all relevant imaging studies to the appointment.

Assessment under review

1. Medical Assessor Wiejitunga certified the following:

Permanent impairment

1. The accident caused injuries where the degree of permanent impairment was greater than ten percent being:

   ·        cervical spine – whiplash associated disorder;

   ·        lumbar spine – soft tissue injury, and

   ·        right wrist – DISI, SLAC wrist.

Treatment and care

1. Medical Assessor Wiejitunga decided each of the following treatment and care disputes in the claimant’s favour:

   ·        Whether the proposed gardening services relates to the injury caused by the motor accident.

   ·        Whether the proposed cleaning services relates to the injury caused by the motor accident.

   ·        Whether they were reasonable and necessary in the circumstances

Disputes and issues identified by the parties

1. The applicant insurer disputed Medical Assessor Wiejitunga certificate as follows:

   ·        The Medical Assessor applied the incorrect test of causation when she decided the accident exacerbated Ms Strong’s lower back pain and neck pain. The Medical Assessor failed to apply clauses 6.5 of the Guidelines, when she opined it was “clinically plausible” the accident could cause those injuries.

   ·        She also applied the incorrect test for causation when deciding whether the accident exacerbated her existing conditions and increased her need for domestic assistance.

   ·        The Medical Assessor failed to give any adequate reasoning for not deducting any pre-existing impairment. This amounted to a failure to accord procedural fairness and failing to exercise jurisdiction.

2. The Medical Assessor did not engage with evidence, including the claimant’s qualified specialist, which supports the claimant’s musculoskeletal condition in her neck and low back being already chronic and symptomatic at the time of the accident.

3. The Medical Assessor’s reasons should have shown she considered the pre-existing impairment under clauses 6.31 and 6.32 of the Guidelines. The insurer’s submissions squarely raised causation. The Medical Assessor’s findings the claimant had musculoskeletal issues before the accident could have been used to calculate a deduction.

4. Medical Assessors are obliged to engage with parties’ arguments if a claimant had a documented history of earlier injury.[10]

   [10] Insurance Australia Limited t/as NRMA Insurance v Warren & Ors [2019] NSWSC 1126, Harrison J.

5. The respondent claimant opposed the application on the basis the Medical Assessor had considered all of the above aspects.

Documentation

1. The Review Panel considered the following documentation:

   ·        Medical Assessor Wiejitunga’s certificate dated 3 August 2022;

   ·        Application for review and attached documents;

   ·        Reply and attached documents;

   ·        Presidential delegate’s reasons issued on 22 October 2022 referring this matter to a Review Panel, and

   ·        all the documents provided to Medical Assessor Wiejitunga before the assessment under review.

2. There was no additional evidence.

REVIEW PANEL FINDINGS

Pre-Accident medical history and personal details

1. Medical Assessor Kenna saw Ms Strong  in his Market Street  rooms on Thursday 16 March 2023 in relation to a medical assessment review. The review subjects were:

   ·        whole person impairment, and

   ·        reasonable and necessary care.

2. The Medical Assessor noted in view of the complex history, which will become self-evident, that there is an extensive amount of documentation and a complex history before the accident.

Background history

1. The claimant told Medical Assessor Kenna she was born in the United States, met her husband while she was overseas and they moved to Australia in 1988, initially travelling to Perth.

2. In Perth, she was working for Rio Tinto and Comalco. She studied law and completed her articles. In 1996, she moved to Sydney where she worked in law and legal aid, doing this for some 20 years. She medically retired before the recent pandemic but continued to work part-time.

3. Following the motor vehicle accident in April 2019, she worked three days per week and then subsequently ceased work and has not worked since.

4. Her current situation is that she is now a 75-year-old, who has been a widow since July 2020, living at home with Aged Care NSW currently providing assisting Ms Strong with gardening and cleaning services.

5. Medical Assessor Kenna understood that this is several hours per week or fortnight. She lives in a single storey house with several bedrooms and one bathroom on her own. Her children are also deceased.

6. She states that the insurer doesn’t fund any personal care as a result of the motor vehicle accident.

7. She said she understood that the reason for this assessment was that the insurer disputed the outcomes in Medical Assessor Wijetunga’s certificate.

8. She acknowledged she had an extensive medical history before the 2019 accident.

9. The submitted documentation confirms that Ms Strong had an extensive pre-accident history of inflammatory rheumatoid arthritis and musculoskeletal issues, with a history of chronic low back pain, intermittent episodes of neck pain, bilateral knee pain, hip pain and bilateral shoulder pain.

10. From her general practitioner’s (GP) documentation, i.e. Medlife Family Medical Centre:

    ·        June 2008 – family history of rheumatoid arthritis.

    ·        June 2008 – rheumatoid arthritis left knee, polymyalgia rheumatica.

    ·        November 2008 – exacerbation of chronic low back pain.

    ·        January 2010 – had a motor vehicle accident on 27 December 2009 describing mild soreness over the neck, knee arthritis, back pain and restricted neck movement.

    ·        February 2010 – osteoarthritis of the lower back. Whiplash injury from the motor vehicle accident.

    ·        February 2010 – a severe episode of lower back pain.

    ·        March 2010 – severe bilateral knee pain.

    ·        March 2011 – hip osteoarthritis.

    ·        September and October 2011 – further episodes of lower back pain.

    ·        February 2012 – multi-joint arthritic pain in both knees and hips.

    ·        May 2012 – plan for knee replacements.

    ·        July 2012 – post bilateral total knee replacement.

    ·        November/December 2012 – chronic back, knee and neck pain. Further episodes in 2013.

    ·        2015 – similar episodes as above.

    ·        November/December 2016 – difficulties with back and hips.

11. In 2008 Dr Walker, orthopaedic surgeon operated on both of Ms Strong’s knees and the right hip.

12. Clinical notes created before the 2009 motor vehicle accident mentioned problems with the, back and hips and she underwent a right total hip replacement in 2017.

13. Her rheumatologist Dr Gotis-Graham managed her condition before the 2019 accident. Medical Assessor Kenna noted she had positive rheumatoid factor with associated fatigue requiring steroids and anti-inflammatories.

14. She was considered to have degenerative muscular problems with severe bilateral arthritis, pelvis deformity.

15. After the 2009 motor vehicle accident it was noted in March 2010, that her pre-existent lower back pain increased, as well as bilateral knee pain, with pain in the neck which eventually improved.

16. The permanent impairment assessment of July 2010 rated her diagnosis-related estimate (DRE) II lumbosacral spine with 5% and left knee restriction to 100° which was 4%.

17. A Medical Panel convened in April 2014, which determined the 2009 accident exacerbated existing degenerative change in her lumbar spine. It also determined there was a right knee soft tissue injury which exacerbated pre-existing degenerative change. The Panel considered the impairments were 0% because they were soft tissue injuries only.

Details of motor vehicle accident: 10 April 2019

1. She states that the motor vehicle accident occurred on 10 April 2019. She was travelling from work along the Hume Highway. She was driving a Toyota sedan 2007. She was in the middle lane with a bus to the left lane, when she noted a driver driving haphazardly and weaving through the lanes.

2. She braked in anticipation of the vehicle overtaking her but as she did so, her vehicle was rear-ended. The vehicle behind appears to have been more severely affected and the driver was trapped in the car.

3. Police and ambulance attended the accident site. The police drove her home in her vehicle. At the time, all that was reported was a bruise to the forehead although the claim form submitted on 1 May 2019 listed several injuries. The Panel notes she didn’t hit any car in front and she didn’t attend hospital but she was shaken up.

4. Nevertheless following this, she started to experience neck and back pain. It was considered at the time that the main injuries were exacerbation of the lower back and neck pain.

5. Medical Assessor Kenna noted there was no specific reference to the right wrist before the 2019 accident and indeed Ms Strong is not recorded as mentioning it apart from the claim form submitted on 1 May 2019 for several months later.

History of symptoms and treatment following the subject motor accident

1. She saw her GP, Dr Tran, who has been her GP for some 16 years, before the 2019 accident. Indeed on scrutiny in the notes, there was only reporting of some wrist pain in October 2019, some five months post motor vehicle accident, apart from the Personal Injury Claim Form.

2. It was shortly thereafter that her husband died from a myocardial infarction.

Current symptoms

1. The pain pattern diagram reflects she is very much pain focussed, with a complaint of neck pain referred into the thoracic region, lower back pain involving the right lower extremity which she describes as 8/10, bilateral shoulder pain (left more severe than the right) and involvement of both upper arms but not distally.

2. Hence, the main complaints pertain to the neck and the back, and she also complains of right wrist pain which can be up to 8/10.

3. She feels that initially the knees were aggravated in the 2019 accident but she acknowledges that this aggravation has since ceased. The aggravation has also ceased for her shoulders, although she feels that the neck and back continue to be symptomatic. This is on a background which she acknowledges of generalised osteoarthritic or rheumatoid factors.

4. In that respect, she states the neck and back hurt most of the time, if not all the time, and she acknowledges that was the case before the 2019 accident.

5. Her left knee is not problematic but the right continues to be so.

Clinical examination

General presentation

1. Findings on clinical examination including specific measurements of range of motion( ROM) (where applicable) of each of the injuries assessed.

2. She is unstable on her feet and has two elbow crutches.

Cervical spine

1. There is no muscle spasm, no dysmetria and no guarding of the cervical spine. Symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.

2. There is no neurological deficit in either upper limb.

3. There was no radiation of pain that follows part of a spinal nerve.

MOVEMENTS	RANGE EXHIBITED
Flexion	20% restriction
Extension	20% restriction
Rotation to the right	20% restriction
Rotation to the left	20% restriction
Lateral bending to the right	20% restriction
Lateral bending to the left	20% restriction

NEUROLOGICAL TESTS

REFLEX	LEFT	RIGHT
TRICEPS JERK	Normal	Normal
BICEPS JERK	Normal	Normal
BRACHIORADIALIS	Normal	Normal

SENSATION: No obvious alteration in normal sensation.

Muscle wasting: no muscle wasting

LEFT (cm)	RIGHT (cm)
UPPER ARM	33	33
FOREARM	23	23

Muscle power

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	NORMAL	NORMAL
C5	5/5	NORMAL	NORMAL
C6	5/5	NORMAL	NORMAL
C7	5/5	NORMAL	NORMAL
C8	5/5	NORMAL	NORMAL
T1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance.

DURAL TENSION TESTS:

TEST	RIGHT	LEFT
PASSIVE NECK FLEXION	Normal	Normal
BRACHIAL PLEXUS STRETCH	Normal	Normal

LUMBAR SPINE

1. There is no muscle guarding or spasm present, symmetrically reduced uniform range of motion(stiffness)but no asymmetry present.

2. There was no neurological deficit in either lower limb.

3. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

4. She has pronounced thoracic kyphosis which impacts on mobility of both the cervical and lumbar spines. Ms Strong was quite profoundly disabled before the 2019 accident due to widespread osteoarthritic changes.

MOVEMENTS	RANGE EXHIBITED
Flexion	15% restriction
Extension	15% restriction
Rotation to the right	15% restriction
Rotation to the left	15% restriction
Lateral bending to the right	15% restriction
Lateral bending to the left	15% restriction

NEUROLOGICAL TESTS

Reflexes

REFLEX	LEFT	RIGHT
KNEE JERK	Normal	Normal
ANKLE JERK	Normal	Normal

Dural Stretch

LEFT	RIGHT
Sciatic nerve stretch (straight leg raise)	Normal	Normal
Femoral nerve stretch (prone knee bending)	Normal	Normal

SENSATION: Normal.

1. Two-point discrimination sensation was normal and a point separation of some 6mm and

   there was sensitivity to light and firmer touch was normal throughout both upper limbs.

MUSCLE POWER

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	NORMAL	NORMAL
L4	5/5	NORMAL	NORMAL
L5	5/5	NORMAL	NORMAL
S1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance

MUSCLE ATROPHY:

THIGH	LEFT = RIGHT
CALF	LEFT = RIGHT

No unilateral muscle atrophy present.

DURAL TENSION TESTS

TEST	RIGHT	LEFT
PRONE KNEE BEND	Normal	Normal
STRAIGHT LEG RAISE	Normal	Normal

UPPER EXTREMITIES

1. The ranges of motion were similar for both the uninjured right shoulder as compared to the left.

2. These measurements would indicate that whilst the left shoulder was initially injured, that any initial soft tissue injury has since resolved, reflecting a symmetrical range of motion for both joints,

3. Right shoulder: uninjured right

Measurement	Reference (4th ed.)
Flexion	120°	Figure 38 (43)
Extension	50°	Figure 38 (43)
Adduction	40°	Figure 41 (44)
Abduction	100°	Figure 41 (44)
Internal Rotation	80°	Figure 44 (45)
External Rotation	70°	Figure 44 (45)
Total

Goniometer measured

Left shoulder

Measurement	Reference (4th ed.)
Flexion	120°	Figure 38 (43)
Extension	50°	Figure 38 (43)
Adduction	40°	Figure 41 (44)
Abduction	100°	Figure 41 (44)
Internal Rotation	80°	Figure 44 (45)
External Rotation	70°	Figure 44 (45)

Goniometer measured.

WRISTS

1. Measurements of the wrists were performed in accordance with the methodology described in Section 3.1h Wrist (35-38) of AMA 4.

2. Medical Assessor Kenna found arthritic changes involving the right wrist, with tenderness over distal radioulnar joint.

3. This was associated with wasting of intermetacarpal with petechial haemorrhages.

4. Right Wrist: uniform % restriction in all directions accompanied by discomfort, joint effusion and crepitus.

Measurement	Reference (4th ed.)	Normal
Flexion	40°	Figure 26 (36)	60°
Extension	40°	Figure 26 (36)	60°
Radial Deviation	15°	Figure 29 (38)	20°
Ulnar Deviation	25°	Figure 29 (38)	30°
Total

Left wrist

Measurement	Reference (4th ed.)	Normal
Flexion	60°	Figure 26 (36)	60°
Extension	60°	Figure 26 (36)	60°
Radial Deviation	20°	Figure 29 (38)	20°
Ulnar Deviation	30°	Figure 29 (38)	30°
Total

LOWER EXTREMITIES

Knees

1. She underwent bilateral knee replacements in 2012 but has full extension to 110° flexion. She acknowledges that her clinical presentation pertaining to the knees relates to her pre-existent factors and not the 2019 motor vehicle accident.

   (a)   There is no muscle wasting.

   (b)   There is symmetry between right and left legs above and below the knee.

   (c)   Normal gait.

   (d)   There is no use of a cane or brace and no redness, warmth, swelling, effusion or deformity.

   (e)   Measurement of the involved calf and thigh are symmetrical with the contralateral side.

   (f)    Ligamentous and meniscal stress tests are normal and painless.

   (g)   The knee range is from 0 to 125°.

   (h)   Manual muscle testing shows normal strength in the extremity.

   (i)    Note that the knees have normal alignment.

   (j)    No crepitus.

Left/Right Knee
Extension 0° ¯ Flexion 135°	0 ¯ 110°

Normal motion fairly unsteady

Scars   yes-joint replacements

Quadriceps Wasting   Nil

Swelling   Nil

Gait   Normal

Short leg   Nil

Atrophy   Negative

Weakness  Negative
Range of movement  Normal
Osteoarthritis  bilateral joint replacements
Amputation  Nil
Neurological deficit  Nil
Reflex sympathetic dystrophy        Nil
Vascular  Normal

OVERALL IMPRESSION

1. Long-term chronic pain from multiple pre-existent medical conditions with the subject accident causing short-term aggravation of pre-existent neck and back problems. That aggravation has since ceased, i.e. contribution from current motor vehicle accident is now zero as it was four years ago.

2. Pertaining to the right wrist, Medical Assessor Kenna considered whether the accident did not cause any condition. There is no history of injury and the clinical presentation is reflective of part of her generalised osteoarthritis.

3. Furthermore, any initial soft tissue injury has long since dissipated and her current clinical presentation is reflective of her overall general health and underlying medical conditions.

4. Medical Assessor Kenna’s opinion is that the motor vehicle accident was of low impact. There was no real substantiation of the right wrist from the point of view of long-term disability. She had been disabled for years before the 2019 motor vehicle accident, Aged Care NSW was already providing lawn mowing and cleaning.

5. Medical Assessor Kenna considers that the accident may have initially aggravated her right wrist, neck and back conditions in the short-term when she is highly prone to exacerbation That aggravation has long since ceased and her clinical presentation now is reflective of one of progressive deterioration which has occurred over several decades, with multiple joints being affected by arthritic factors.

6. Medical Assessor Kenna’s understanding is that her knee replacements were funded privately, as she has private insurance.

Clinical comments

1. Ms Strong is a 75-year-old female who is quite severely disabled due to a long history of arthritis, who had already undergone two knee replacements and one hip replacement. She had a long history of spinal arthritic change associated with her familial history.

2. She was involved in an earlier motor vehicle accident in late 2009. She states in that accident she didn’t injure her hips or hands but that accident injured her neck and back with a claim it aggravated neck and back symptoms, which were already active. The 2009 accident did not affect her the right wrist.

3. When asked about the family history of rheumatoid and osteoarthritis, she states that this is from her mother’s side. Her three sisters and her mother were significantly affected.

4. Medical Assessor Kenna’s view is that the motor vehicle accident was a low-speed impact, the car repairs cost $3,600 and it was driveable, that she may have sustained in the short-term brief soft tissue aggravation to the neck and back, but that aggravation has since ceased.

5. Medical Assessor Kenna’s opinion is there is really no clear history that the accident injured her right wrist. There was substantially delayed reporting.[TO1]  This is on the background of underlying pre-existent degenerative change and note that range of motion is only marginally affected and that the current loss of range is only due to medical factors that existed before the 2019 accident.

6. Other than that, with regards to the knees, the 2019 accident did not injure her knees, or the left shoulder. The right shoulder was uninjured.

7. Medical Assessor Kenna’s view is that the proposed gardening services and the proposed cleaning services do not relate to the injuries caused by the motor vehicle accident, and also that neither would be reasonable and necessary.

Domestic assistance

1. Ms Strong also claims cleaning service relating to the injury caused by the motor vehicle accident with a similar request for gardening services.

2. Before the motor vehicle accident she was receiving cleaning services, as well as gardening assistance. Aged Care NSW provided these services.

3. It was stated that before the motor vehicle accident, she was incapable of performing these activities but it is now being stated that but for the accident, she would be capable of performing such, which is clearly inherently untrue, as she required this assistance before the motor vehicle accident.

4. Furthermore her husband, who used to help her before he died in July 2020, was actually unable to help her out after the 2019 accident with any heavier housework or gardening. Her husband was unable to work outside the home because it is recorded in the clinical notes he was a paranoid schizophrenic who abused her when he would not take his medication.

5. As noted in the Benchmark Rehabilitation report of June 2019, where it was concluded that it was not considered reasonable to provide the use of domestic cleaning and maintenance services, as the claimant had engaged those services before the accident and indeed when asked, she was unable to say how her participation or productivity had changed after the 2019 accident when she was unable to perform such activities before the accident. That is, the claimant’s needs have not necessarily increased after the 2019 accident.

6. Furthermore, the claimant received  community funded services, through NSW Aged Care from Prindle House Cleaning, Gardening and Maintenance as well as up until her late husband’s death, there was some reliance on her partner for assistance. Indeed, it appears to be put forward that the 2019 accident related cleaning assistance to be obtained was to replace the services that had already been funded by another provider.

7. Nevertheless, it appears that there was no clear additional need for cleaning services as a result of injuries sustained in the motor vehicle accident. That is, there was no increase in the claimant’s needs or hours.

8. That being the case, Medical Assessor Kenna is of the view that there is no need for cleaning services or gardening assistance linked to the 2019 accident related injuries. She may require those services but that is due to long-standing factors that were already in place before the accident.

9. Furthermore, she was not seeking an increase in hours on top of the services she was already receiving before the accident. This supports the view that the motor vehicle accident did not contribute to her need for additional domestic assistance

10. With regards to the knees, any initial aggravation has since ceased and so it is non-causal.

11. Similarly pertaining to the left shoulder, any initial aggravation has since ceased and it is non-causal and movement is similar to the uninjured, unaffected right shoulder.

12. Slightly altered range of movement pertaining to the right wrist is reflective of osteoarthritic changes, not instituted by the motor vehicle accident. Medical Assessor Kenna considered the wrist, which has become progressively more symptomatic, indicated a history of progressive degenerative change which is reflective of multi-joint pathology.

13. Medical Assessor Kenna’s view is that either the injury was minor, for which it has resolved and currently clinical symptomatology is reflective of pre-existing pathology and as noted, it didn’t become an issue until at least 4-5 months later, which in Medical Assessor Kenna’s opinion was more reflective of a pathology process of deterioration over time.

Panel deliberations

1. The Panel adopted Medical Assessor Kenna’s report as evidence in this review. This was discussed in two further Teams conferences on 16 May and 18 July 2023.

2. The Panel agreed that the cervical and lumbar spine conditions had resolved and were contributing 0% permanent impairment.

3. The Panel also agreed that the 2019 accident did not injure her knees, or the left shoulder.

4. However, there was discussion about whether Ms Strong’s right wrist condition was traumatic or degenerative.

5. The Panel note that Ms Strong's GP referred her to hand surgeon Dr Chris Scott on January 15, 2020, who produced a brief referral to another specialist with the following opinion: "although I have not been able to view the films, my impression is that Donna’s ongoing symptoms are due to inflammatory wrist arthritis rather than any acute ligament injury”.

6. Dr Scott revised his views though by February 20, 2020. Dr Scott authored a brief report to the insurer:

   "Donna had no symptoms in her right wrist prior to her motor vehicle accident and has had ongoing pain in the wrist ever since. It is likely that she's sustained a scapholunate ligament injury as a result of the accident, and this is evident both on the x-rays and on the MRI scan (which I have now reviewed). However, her MRI also shows widespread inflammatory changes suggestive of inflammatory arthritis. Surgery to repair the ligament is contraindicated by the presence of active inflammatory arthritis… My impression is that the pain which has resulted from the accident will improve once the inflammatory arthritis is brought under control."

7. On March 31, 2021, Dr Scott reported to the GP that the insurer had delayed approval for nine months for Mrs Strong to see a rheumatologist Dr Ian Gotis-Graham. The rheumatologist – who was treating Ms Strong before the 2019 accident – opined to Dr Scott that the degenerative changes related to a scapholunate ligament rupture and was not primarily inflammatory arthritis. Dr Scott conceded the 2019 accident caused her right wrist injuries and ongoing pain. Dr Scott considered the insurer's delay had made it "much more difficult to treat her traumatic wrist injury".

8. The Panel noted that the insurer's internal review decision regarding her gardening services dated 22 April 2021, refers to Dr Scott's earliest opinion that he thought the wrist injury was constitutional, but omitted to refer to his later opinions as well as the rheumatologist's opinion that the 2019 accident caused her right wrist injury.

9. The Panel agreed that based on these treating doctors’ opinions the wrist condition was traumatic in origin. It was also agreed that although Ms Strong had widespread osteoarthritis before the accident that it was asymptomatic in the right wrist before the 2019 accident, and accordingly there should be no deduction calculated for a pre-existing condition from her permanent impairment.

10. In respect of gardening and domestic assistance Medical Assessor Wijetunga noted Ms Strong's right wrist pain was strong rating it 9/10 and that it impacted her ability to dress herself, open bags, cans of food or type a keyboard as well as smaller gardening tasks. She could do those activities before the 2019 accident. Her treating doctors support the 2019 accident as causing her current level of impairment. She needs additional domestic and gardening assistance.

11. The Panel noted Ms Strong is right arm dominant and requires aids to manage.

12. However, the Panel noted that the occupational therapist reports with this review do not claim the 2019 accident made it necessary to increase the level of assistance to Ms Strong from the level she already receives from Aged Care NSW.

13. Accordingly, the Panel agreed with Medical Assessor Kenna opinion regarding domestic and gardening assistance.

1. The Review Panel found that the motor accident caused the following injuries:

   ·        right wrist scapholunate ligament tear;

   ·        lumbar spine soft tissue injuries, and

   ·        cervical spine soft tissue injuries.

1. The Review Panel considered that the following injuries give rise to a permanent impairment:

   ·        right wrist scapholunate ligament tear;

   ·        lumbar spine soft tissue injuries, and

   ·        cervical spine soft tissue injuries.

2. The 2019 accident caused a degree of permanent impairment of the injuries calculated as follows:

   +Permanent Impairment Table

Body Part or System	AMA Guides/ The Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Cervical Spine DRE I	Ch 3, pgs102-107, AMA4 Tables 7 & 8 The Guidelines	Yes	0	0	0
2	Lumbosacral Spine DRE I	ch3, pgs 102-107, AMA4 Tables 7 & 8 The Guidelines	Yes	0	0	0
3	Right wrist	AMA4, figs 26, 29 pgs 36, 38	Yes	5	0	5

Right wrist : flexion: 40° (-20°) =3% UEI
extension: 40° (-20°) = 4% UEI
radial deviation: 15° (-5°) = 1%UEI
ulnar deviation 25° (-5°) = 1% UEI
Total : 9% UEI
CONVERSION TO WPI% : 9 X .6 = 5.4%
Rounded to 5%WPI
* %WPI = percentage whole person impairment

Degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident

1. The total percentage permanent impairment for assessed injuries caused by the motor accident is 5%.

2. Therefore the total whole person impairment is not greater than 10%.

3. Permanent impairment ratings take symptoms into account; however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.

Permanent impairment

1. The Review Panel’s findings in relation to the degree of permanent impairment of the injuries caused by the motor accident are different to the findings as stated in Medical Assessor Wijetunga’s Permanent Impairment certificate. This was because the assessor had found asymmetry of neck and low back movements, which was not present when Medical Assessor Kenna examined Ms Strong.

2. The Review Panel found the 2019 accident caused cervical and lumbar spine soft tissue injuries, which temporarily aggravated established cervical and lumbar spine conditions. That aggravation had resolved by the time Medical Assessor Kenna examined Ms Strong. The remaining spinal impairment is due to Ms Strong’s constitutional spinal conditions, which were well established when the 2019 accident happened.

3. The 2019 accident caused a right wrist scapholunate ligament tear. The Review Panel notes that Ms Strong made a contemporaneous reference to a right wrist injury in in her claim form, and her treating specialists support a traumatic nexus to her current condition.

4. Ms Strong’s treating specialists confirmed osteoarthritis was present in her right wrist before the 2019 accident, but it was asymptomatic so a deduction should not be calculated.

5. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment certificate has been issued.

Treatment – causation

1. The Review Panel’s findings differ from Medical Assessor Wijetunga’s Related Treatment certificate in relation to whether the 2019 accident caused an injury requiring the treatment provided, or to be provided.

2. The Review Panel will issue a new treatment and care certificate.

Treatment and care – reasonable and necessary

1. The Review Panel’s findings differ from Medical Assessor Wijetunga’s related treatment in relation to whether the treatment provided, or to be provided is reasonable and necessary.

1. The Review Panel will issue a new certificate in respect of whether treatment is reasonable and necessary.

Review Panel certification

1. Member O’Riain, Medical Assessor Gibson and Medical Assessor Kenna have viewed these certificates and confirmed that they agree.

[TO1]Her credit is not in question. Do you really want this in the report, CK? Or you can say on the balance of probabilities you accept the 2019 accident contributed.