Irving v QBE Insurance (Australia) Limited

[2023] NSWPICMP 545

DETERMINATION OF REVIEW PANEL

CITATION:

Irving v QBE Insurance (Australia) Limited [2023] NSWPICMP 545

CLAIMANT:

Laura Anne Audrey Irving

INSURER:

QBE Insurance (Australia) Limited

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Wing Chan

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

30 October 2023

CATCHWORDS:

MOTOR ACCIDENTS – The claimant sustained injury in a motor vehicle accident on 9 September 2014; after the accident she developed pain and swelling in her right upper arm; on 1 October 2014 a thrombosis involving the right upper limb veins was diagnosed; the claimant underwent removal of the right first rib to prevent re-narrowing and re-thrombosis of the vein; claimant also developed pain in the lumbar spine; dispute as to causation of the deep vein thrombosis (DVT); whole person impairment (WPI), treatment (past and future) and domestic assistance (past) relating to the DVT; Medical Assessor (MA) Cameron found DVT caused by accident, assessed 2% WPI; certified all treatment past and future related to right upper limb DVT caused by accident; found domestic assistance in relation to right upper limb DVT not caused by accident and not reasonable and necessary in circumstances; Held – certificate of MA revoked; venous thrombosis in right upper arm caused by accident; soft tissue injury to lumbar spine caused by accident; 2% WPI assessed for right upper limb thrombosis assessed under Table 17 of the AMA 4 Guides; 0% WPI for injury to lumbar spine; 0% WPI for surgical scarring; no assessable impairment for excision of the right rib; past medical treatment related to right upper limb DVT related to injury caused by the accident and reasonable and necessary in circumstances; no future treatment required for right upper limb DVT; future treatment not related to injury caused by accident and not reasonable and necessary in circumstances; need for domestic assistance related to injury caused by the accident; with the consent of the parties the Panel assessed whether domestic assistance reasonable and necessary; Panel assessed need for 2 hours per week domestic assistance related to right upper limb DVT was reasonable and necessary in the circumstances during the periods 9 September 2014 to 24 February 2015, 6 March 2015 to 7 June 2019 and 26 July 2019 to date. 

DETERMINATIONS MADE:  

MOTOR ACCIDENTS COMPENSATION ACT 1999

Review Panel Certificate
issued under Part 3.4 of the Motor Accident Compensation Act 1999
following a review under s 63 as to
WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The Panel revokes the Certificate of Medical Assessor Cameron dated 1 December 2022. The Panel determines that the following injuries were caused by the motor accident and do not give rise to a whole person impairment which is greater than 10%:

·        right rib – excision due to right subclavian vein thrombosis;

·        skin – scarring from right rib removal;

·        right upper arm – deep vein thrombosis (DVT);

·        lumbar spine – soft tissue injury, and

·        right arm – peripheral vascular disease.

THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 61 IS AS FOLLOWS:

The Panel revokes the certificate of Medical Assessor Cameron issued under s 61 of the MAC Act dated 1 December 2022 and issues a new certificate certifying the following treatment relates to the injury caused by the accident and was reasonable and necessary in the circumstances:

(a)    general practitioner (GP) consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(b)    specialist consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(c)    investigations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(d)    any scans in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(e)    any hospitalisations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(f)    any procedures in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(g)    any surgeries in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(h)    any medications in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(i)    domestic assistance for two hours per week for the periods
9 September 2014 to 24 February 2015, 6 March 2015 to 7 June 2019 and from 26 July 2019 to date in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Pget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

(j)    any physiotherapy in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date, and

(k)    any counselling in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date.

The Panel certifies the following treatment does not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances:

(a)    any proposed GP consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(b)    any proposed specialist consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(c)    any proposed investigations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(d)    any proposed scans in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(e)    any proposed hospitalisations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(f)    any proposed procedures in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(g)    any proposed surgeries in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(h)    any proposed medication in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(i)    any proposed physiotherapy in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy, and

(J)    any proposed counselling in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy.

STATEMENT OF REASONS

INTRODUCTION

1. Ms Laura Anne Audrey Irving (the claimant) was a front seat passenger in a vehicle driven by her husband when it was involved in an accident causing her to sustain injury on 9 September 2014 (the accident).

2. QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Irving under the Motor Accident Compensation Act 1999 (MAC Act).

3. This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1] This dispute was referred to Medical Assessor Cameron.

   [1] Sections 57 and 58 of the MAC Act.

4. A further dispute referred to Medical Assessor Cameron was whether treatment both past and future related to injury caused by the accident and whether it is reasonable and necessary in the circumstances.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Cameron issued a certificate dated 1 December 2022.[2] The following injuries were referred to Medical Assessor Cameron for an assessment of the degree of permanent impairment caused by the accident:

   ·        right rib – excision due to right subclavian vein thrombosis;

   ·        skin – scarring from right rib removal;

   ·        right upper arm – deep vein thrombosis (DVT);

   ·        lumbar spine – soft tissue injury, and

   ·        right arm – peripheral vascular disease.

   [2] AD1 p 7.

2. He certified the following treatment related to the injury caused by the accident and was reasonable and necessary in the circumstances:

   ·        medical specialist consultation - specialist consultations in relation to right upper limb deep DVT;

   ·        investigations in relation to right upper limb DVT;

   ·        procedures in relation to right upper limb DVT;

   ·        any surgeries in relation to right upper limb DVT;

   ·        medical - over the counter - any medications in relation to right upper limb DVT;

   ·        any proposed investigations in relation to right upper limb DVT;

   ·        scans in relation to right upper limb DVT;

   ·        any hospitalisations in relation to right upper limb DVT;

   ·        physiotherapy treatment ;

   ·        proposed general practitioner (GP) consultations in relation to right upper limb DVT;

   ·        any proposed procedures in relation to right upper limb DVT;

   ·        any proposed specialist consultations in relation to right upper limb DVT;

   ·        radiological investigations – scans;

   ·        any proposed hospitalisations in relation to right upper limb DVT;

   ·        medical - over the counter, and

   ·        any proposed physiotherapy in relation to right upper limb DVT.

3. Medical Assessor Cameron certified the following treatment did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances:

   ·        domestic assistance in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease).

4. Medical Assessor Cameron concluded Ms Irving sustained soft tissue injuries to her neck and right shoulder region in the accident. She subsequently developed thromboses in the veins in the right upper extremity and right shoulder region. He noted a clear temporal relationship, the lack of other apparent risk factors for the development of deep venous thrombosis and in view of the mechanism of injury concluded that the deep venous thrombosis was related to the accident.

5. On examination he noted a mildly and symmetrical reduced range of motion (80% of normal) in all planes with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable complaints.  Nerve tension signs were negative.

6. He found a full range of motion of the left shoulder.  At the right shoulder he reported range of movement was abduction 160º, adduction 50º, flexion 160º, extension 50º, internal rotation 90º and external rotation 80º. He noted the presence of prominent veins in the right upper extremity above the elbow.  He noted right upper extremity circumferences – above elbow right 31cm, left 30cm, below elbow right 27.5cm and left 26.5cm. Both radial pulses were present and both hands were warm.

7. He reported the 10cm horizontal scar in the left axillary region was inconspicuous.

8. He found a mildly and symmetrically reduced range of motion (80% of normal) in all planes of the thoracic spine, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints. Nerve tension signs were negative.

9. He found a full range of motion of the lower extremity joints and no abnormalities in the lower extremities.

10. In assessing permanent impairment Medical Assessor Cameron found the excision of the right rib is not assessable. He assessed the scaring at 0% whole person impairment (WPI) because Ms Irvine is only partly aware of the scar, is able to locate it, there is good colour match, no trophic changes, no contour defect, no effect on ADL (activities of daily living) and no adherence. 

11. He noted the DVT had resolved and had no permanent impairment.  He assessed residual peripheral vascular disease separately under Table 17, page 57 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (AMA 4 Guides) at 2% WPI because it is not severe and does not require treatment.

12. Medical Assessor Cameron assessed the lumbar spine soft tissue injury as DRE Lumbosacral Category 1 resulting in 0% WPI.

13. In relation to treatment, he concluded the right upper extremity deep venous thrombosis was caused by the accident and therefore concluded that all treatment with the exception of the domestic assistance was related to the accident and was reasonable and necessary.

14. Medical Assessor Cameron concluded the deep venous thrombosis did not cause significant limitations in function that would require domestic assistance. Accordingly, he concluded domestic assistance was not related to the accident and was not reasonable and necessary.

REVIEW PROCEDURE

1. The present application is a review of a medical assessment pursuant to s 63 of the

   
   

   MAC Act. The relevant medical assessment was undertaken by Medical Assessor Cameron and was the subject of his certificate dated 1 December 2022.

2. An application for review of the medical assessment of Medical Assessor Cameron       was lodged on 21 December 2022 within 28 days of the date on which the replacement certificate of Medical Assessor Dixon was made available to the parties.[3]

   [3] Section 63(7) of the MAC Act.

3. On 2 March 2023 the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[4]

   [4] Section 63(2B) of the MAC Act.

4. The Personal Injury Commission (Commission) commenced operation on
   1 March 2021 and the Claims Assessment and Resolution Service was abolished by
   cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).

5. Under cl 14A(1)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.

6. Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in

   
   

   cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made after 1 March 2021 the new review provisions apply.

7. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[5] The President’s delegate referred this application for review to the panel.

   [5] Section 63(3) of the MAC Act.

8. Part 5 of 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 Medical Assessor.[6]

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

9. 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.[7]

   [7] Rule 128 of the PIC Rules.

10. The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]

    [8] Section 63(3A) of the MAC Act.

11. On 27 June 2023 Member McTegg on behalf of the Panel participated in a teleconference with the parties.  Prior to the teleconference the following message was sent to the parties:

    “I am the legal member of the Medical Review Panel undertaking a review of the Certificate of Medical Assessor Cameron.  On behalf of the Panel, I propose to hold a teleconference to discuss a number of procedural matters.  I will participate on behalf of the Panel and I ask that the lawyer with the carriage of the matter participate for each party. 
    Matters to be discussed which may require you to obtain instructions are the following:

    1.Is the claimant prepared to come to Sydney for the assessment (noting the insurer is required to meet her travel costs) or do the parties agree to the matter being determined on the papers with the history to be clarified by videolink on the basis the clinical findings of Medical Assessor Cameron are accepted.

    2.Assuming the Panel either examines the claimant in person or speaks to her by videolink do the parties agree to the panel determining the claim for domestic assistance including an assessment as to hours and periods required if a finding is made that there was a need for domestic assistance caused by the accident.”

12. Mr Jonathan Coyle represented the interests of the claimant at the teleconference on 27 June 2023 and Mr Mark Malley represented the interests of the insurer.

13. The insurer consented to the matter being determined on the papers on the basis the clinical findings of Medical Assessor Cameron were accepted.

14. However, the claimant did not consent to the dispute being determined on the papers. I was informed the claimant would be available to travel to Sydney on and after September for the assessment.  Mr Malley indicated in that event the insurer would meet the claimant’s costs. 

15. Both parties agreed the Panel could determine the claim for domestic assistance including an assessment as to the hours and periods required if a finding is made there was a need for domestic assistance. 

16. Having regard to the decision of the Court of Appeal in Sydney Trains v Batshon[9]  the Panel agreed a medical examination was required.

CLARIFICATION OF THE TREATMENT DISPUTE BEFORE THE PANEL

[9] Sydney Trains v Batshon [2021] NSWCA 143.

1. The terms of the treatment dispute were not readily apparent from the certificate of Medical Assessor Cameron. In particular, the nature of the dispute as to domestic assistance was not defined. 

1. The Panel has reviewed the Summary of disputes referred for assessment. The referral was dated 23 December 2019 and was initially to Medical Assessor Chan.  Medical Assessor Chan did not undertake the assessment, which was subsequently referred to Medical Assessor Cameron, although a new letter of referral was apparently not issued.  

2. For the purposes of this review the Panel notes the letter of referral dated

   
   

   23 December 2019 referred the following treatment disputes for assessment:

   (a)    whether any GP consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (b)    whether any specialist consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (c)    whether any investigations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (d)    whether any scans in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (e)    whether any hospitalisations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (f)    whether any procedures in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (g)    whether any surgeries in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (h)    whether any medications in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (i)    whether any domestic assistance in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (j)    whether any physiotherapy in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (k)    whether any counselling in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from date of accident to date of MAS assessment is causally related to the injury sustained in the accident;

   (l)    whether any proposed GP consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (m)     whether any proposed specialist consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (n)    whether any proposed investigations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (o)    whether any proposed scans in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (p)    whether any proposed hospitalisations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (q)    whether any proposed procedures in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (r)    whether any proposed surgeries in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (s)    whether any proposed medication in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident;

   (t)    whether any proposed physiotherapy in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident, and

   (u)    whether any proposed counselling in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) from the date of MAS assessment and continuing for claimant’s life expectancy is causally related to the injury sustained in the accident.

3. The Panel was not satisfied that the referral letter dated 23 December 2019 was an accurate statement of the treatment dispute referred for assessment. In particular, the Panel notes the treatment disputes as outlined in that letter did not ask the Medical Assessor to also determine whether the treatment was reasonable and necessary in the circumstances. This is clearly an error.

4. Therefore, the Panel has also had regard to the Application for assessment of a treatment dispute dated 7 June 2019 filed by the insurer.

5. The past treatment dispute referred for assessment was described in Section 5 of that Application as follows:

   “This dispute relates to all treatments to date including GP attendances, specialist attendances, investigations, scans, hospitalisations, procedures, surgeries, medications, assistance, physiotherapy and counselling in relation to the claimant’s post-accident diagnosis with a right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) on the basis that the subject accident was not a cause of that condition.”

6. The future treatment dispute referred for assessment was described in Section 6 of that Application as follows:

   “This dispute relates to all future treatments including GP attendances, specialist attendances, investigations, scans, hospitalisations, procedures, surgeries, medications, physiotherapy and counselling allegedly required in relation to the claimant’s post-accident diagnosis with a right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Shroetter Paget syndrome and von Shroetter Disease) on the basis that the subject accident was not a cause of that condition.”

7. Whilst not clearly spelt out the reference to “assistance” in Section 5 of the Application suggests the dispute as to domestic assistance relates to past domestic assistance only.  The word “assistance” is omitted from Section 6 of the Application suggesting there is no dispute before the Panel in respect of future domestic assistance.  

8. The Panel proposes to determine the dispute on the basis the dispute for past treatment including past domestic assistance relates to treatment to the date of this decision. The dispute as to future treatment, which does not include domestic assistance, is for treatment for the future.

RELEVANT LEGAL AUTHORITY

Permanent impairment dispute

1. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines effective from 1 June 2018 relate to motor vehicle accidents that occurred between 5 October 1999 and

   
   

   30 November 2017. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[10]

   [10] Clause 1.2 of the Guidelines.

2. Causation of injury is addressed in the Guidelines:

   “1.5   An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

   1.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

   This, therefore, involves a medical decision and a non-medical informed judgement.

   1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

3. In Norrington v QBE Insurance (Australia) Ltd[11] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

   “In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”

   [11] [2021] NSWSC 548, Norrington.

4. In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[12] where the Court stated at [64]:

   “The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”

   [12] [2016] NSWCA 229, McGiffen.

5. Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[13] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.

Treatment dispute

[13] [2021] NSWSC 804, Kinchela.

1. In accordance with s 58(1)(a) and (b) of the MAC Act a medical assessment matter includes a dispute as to “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.

2. In accordance with s 58(1)(a) and (b) of the MAC Act a medical assessment matter includes a dispute as to “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.

3. In AAI Limited v Phillips[14] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in

   
   

   s 58(1) of the MAC Act.

   [14] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.

4. Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.

EVIDENCE BEFORE THE REVIEW PANEL

1. The Panel issued a Direction to the parties on 10 March 2023. In response to that Direction the solicitor for the claimant uploaded a bundle of documents paginated from pages 1 to 143 and marked AD1.  The solicitor for the insurer uploaded a bundle of documents paginated from pages 1 to 62 and marked AD2.

Personal Injury Claim Form

1. In the claim form dated 24 November 2014 the description of the accident included the following:[15]

   “…Mr Jung pulled straight out across the third lane towards the entrance to the racecourse. We were travelling in the third lane, at approx. 50-60kph – when Mr Jung entered our path. Our vehicle hit Mr Jung’s vehicle on the passenger side. The impact to our vehicle was front on. Both driver and passenger airbags deployed. …”

   [15] AD1 p 62.

Statement of Ms Irving

1. Ms Irving provided a statement dated 11 August 2018.[16]  Ms Irving stated she was thrust forward at the point of impact, crushing and breaking a cosmetic compact she was holding in her right hand between herself and the airbag. She said she used her feet and left hand on the door to brace herself. Both driver and passenger airbags deployed.

   [16] AD1 p 88.

2. Ms Irving stated shortly after the accident she noticed the veins in her arm were more visible than normal and over the next couple of days (after the accident) she developed pain and swelling in her right arm. 

3. Following her discharge from hospital on 6 March 2015 her mother came out from the United Kingdom to assist with her recovery. Ms Irving stated she required the assistance of her mother in all areas of personal care. She also reported the insurer arranged for some paid domestic assistance for about six weeks following her surgery.

4. Ms Irving stated she had difficulty with repetitive tasks or tasks that involve bending, lifting or twisting or any activity involving her right arm and shoulder. She stated she could not do scrubbing, mopping or change the bed linen or hang out heavy washing. She could not store or retrieve items from above shoulder height and could only vacuum and iron in short intervals. She was unable to carry heavy shopping or lift heavy pots when cooking. She stated in addition to some paid domestic assistance her husband was performing the majority of the household cleaning.

Statement of Christopher Clarke

1. Mr Clarke is the former husband of the claimant and provided a statement dated

   
   

   14 August 2018 in which he confirmed he had assumed responsibility following the accident for shopping and cleaning tasks which were previously undertaken by

   
   

   Ms Irving. 

Photographs

1. On 4 September 2023 the claimant uploaded 11 photographs of her home to assist in the assessment of the claim for domestic assistance.

Treating medical evidence

Ambulance report

1. The ambulance report states:

   “Pt front passenger of small car involved in head on 50kph collision – airbag deployed. Minor frontal damage. Self extricated. O/A walking around scene and gathering effects from car. GCS 15, c/o R hip pain, superficial hyperaemia to R iliac, pain described as “external ache, 4/10. Gradual onset L shoulder ache also – seatbelt injury. At ED pt c/o gradual onset neck pain, nil deficits.”[17]

Dr Andrew McDonald, sports medicine physician

[17] AD1 p 83.

1. On 1 October 2014 Dr McDonald reported the following history:

   “Laura was a front seat passenger in a motor vehicle accident on September 9, 2014. She states that a car turned right directly in front of the car in which she was travelling, causing her car to strike the other car. The force of the accident caused the airbags to be deployed and Laura noted pain in both the neck and hips at the time. Over the next week she had generalised neck and shoulder discomfort. 1 week later she developed tightness through the neck, the right side of the trapezius, the right arm, forearm, hand and the fourth and fifth fingers. She had restricted cervical spine movement particularly flexion and rotation. Over the intervening 2 weeks her neck pain and range of motion have improved and she has noticed more prominent swelling of the right upper limb and venous congestion over the right anterior chest wall and right upper limb. She describes an ongoing aching through the right anterior chest wall, trapezius, shoulder, arm and forearm. She has not noticed any upper limb weakness. She has ongoing mild paraesthesia over the palm of the right hand over the fourth and fifth fingers. She has some right-sided neck pain but no medial elbow pain.”[18]

   [18] AD1 p 125.

2. On examination Dr McDonald noted the right upper limb was visibly swollen with swelling of the veins over the right anterior chest wall and arm.  Distal pulses were intact. He arranged a Doppler ultrasound which confirmed a significant thrombosis involving the subclavian vein, axillary vein and brachial vein to the level of the elbow. He sought advice from Dr Omari, a vascular physician who recommend commencing Clexane 80 mg BD and performing a repeat Doppler ultrasound in one week.

3. On 4 November 2014 Dr McDonald reported Ms Irving developed increasing symptoms the following weekend (after he saw her on 1 October 2014) and she presented to hospital and underwent thrombolysis and angioplasty to remove the clot. He noted

   
   

   Dr Thomas had recommended excision of her first rib and referred Ms Irving to Professor Omari for a second non-surgical opinion.[19]

Professor Abdullah Omari, vascular specialist

[19] AD1 p 127.

1. Professor Omari saw Ms Irving for review on 23 December 2014.[20] He reported the vascular ultrasound revealed ongoing non-occlusive thrombus within the upper limb vessels with collaterals and some dynamic compression of the proximal upper limb vein with abduction of the arm.

   [20] AD1 p 137.

2. He noted she was keen to avoid surgical intervention and suggested she discontinue her anticoagulation and start on Aspirin. However, he advised there was a risk of thrombotic recurrence and suggested a repeat vascular ultrasound in eight weeks.

Dr Shannon Thomas, vascular and endovascular surgeon

1. On 5 January 2015 Dr Thomas reviewed Ms Irving, noting she had sought a second opinion regarding removal of the first rib.[21] He reported:

   “She presented with a swollen right arm in the context of a recent MVA. No fracture was demonstrated however the subclavian vein was occluded down to the brachial veins. I then performed lysis using a Fast Urokinase Technique where we were able to aspirate a significant clot load.  On venography we then found the subclavian vein to be tightly stenosed where it cross the first rib. This point was angioplastied, and on final venogram we attained a pleasing result with very little residual clot.”

   [21] AD1 p 120.

2. He thought it was likely Ms Irving would occlude her subclavian vein again and recommended removal of the first rib to prevent re-narrowing of the subclavian vein and thus rethrombosis.

3. Dr Thomas reviewed Ms Irving on 2 February 2015 when he reported her right arm was becoming more painful with the surface veins appearing more prominent.[22] He noted a recent ultrasound showed the vein to be patent but with significant residual thrombus in the subclavian vein.  He again discussed surgery, namely, resection of the right 1^st rib followed by re-angioplasty of the right subclavian vein five to seven days after the 1^st rib resection.

   [22] AD1 p 121.

4. On 28 September 2015 Dr Thomas reviewed Ms Irving.[23] He reported she was pregnant and had been swimming regularly with no real upper limb problems. She was no longer on any anticoagulant/antiplatelet. A recent ultrasound of the subclavian veins showed some chronic clots but no acute changes.

   [23] AD1 p 125.

5. On 30 March 2015 Dr Thomas reported Ms Irving had done well after the first rib resection and angioplasty of the subclavian vein.[24] He reported ultrasound showed the brachial and subclavian veins to be patent.

Investigations

Ultrasound of right shoulder, 25 September 2014[25]

[24] AD1 p 123.

[25] AD1 p 119.

1. The report reads:

   “Clinical information: Injury 2 weeks ago. Swelling in the upper arm.

   Findings: There is tendonitis of the supraspinatus tendon. The biceps tendon is in the bicipital groove. The infraspinatus tendon is normal. The subscapularis tendon is normal and there is no evidence of rotator cuff tear. Mild subacromial bursitis noted only.

   Impression:  Mild tendonitis of the supraspinatus and minimal subacromial bursitis. …”

Venous doppler study of right upper limb, 1 October 2014

1. The report reads:

   “Report:  There is occlusive thrombus which is partly echogenic extending from the elbow along the brachial vein and including the axillary vein and the subclavian vein. Just proximal to the junction of the jugular it is obscured by the clavicle however the internal jugular and the upper SVC were visualised and are clear.

   Some collateralisation was noted in the axillary area.

   Conclusion:  DVT involving the right arm as suspected clinically. The echogenicity suggests that this has been going for a whilst probably at least 1 week.”[26]

Upper limb venous duplex (DVT), 23 December 2014[27]

[26] AD1 p 130.

[27] AD1 p 140.

1. The report summary reads:

   “Extensive non acute, non occlusive thrombus in the left upper limb with evidence of collateral formation.”

X-ray of the cervical spine, 23 December 2014[28]

[28] AD1 p 131.

1. The report reads:

   “Report:  There is loss of the usual cervical lordosis.

   There is some anterior degenerative lipping at C6/7.

   There is tilting of the cervical spine towards the left in the frontal view.

   The cervical foraminae are clear on the left side and on the right side there is only minor narrowing at C3/4….”

X-ray of the lumbosacral spine, pelvis and left hip, 27 September 2017[29]

[29] AD1 p 118.

1. The report concluded there was lumbar spondylosis at L3-4.

Dr Chan, general practitioner

1. Dr Chan provided a report to the insurer on 26 February 2015.[30] She diagnosed a subclavian vein thrombosis following the accident. The claimant required further treatment and follow up under Dr Thomas. A full recovery was expected without long term anticoagulation following surgery. While there were no specific restrictions on the claimant’s fitness to work, she noted “6 weeks post-surgery, it is expected that she wouldn’t be doing lifting with the right arm and to avoid above head activities”.

Medico-legal reports

[30] AD2 p 20.

Dr G J McGroder, occupational health physician

1. Dr McGroder provided reports dated 3 October 2018, 20 May 2019 and

   
   

   15 August 2022. The 2022 assessment was undertaken by videolink.[31] 

   [31] AD1 p 23.

2. In the report dated 3 October 2018 Dr McGroder reported Ms Irving had a constant aching sensation at the neck/shoulder junction and had difficulty with reaching, pushing and pulling and with tasks such as hanging the washing.[32] In relation to her lower back Dr McGroder reported Ms Irving tried to avoid significant bending and lifting.

   [32] AD1 p 107.

3. In the report dated 20 May 2019 Dr McGroder reported Ms Irving said her husband still helped considerably with the housework.[33] She and her husband were due to move to the United Kingdom the following week. She reported difficulty with repetitive use of the right arm, with sustained elevation of the right arm and with static load on the right arm. Her back was her main ongoing concern and she had problems with sitting, standing and sometimes walking.

   [33] AD1 p 103.

4. In the report dated 15 August 2022 Dr McGroder reported following the accident the claimant’s symptoms localised to the right neck/shoulder/arm and the lower back. He noted the main concern was an occlusion of the subclavian vein.  She underwent a number of angioplasty procedures and subsequently removal of the first rib in February 2015.

5. Dr McGroder reported Ms Irving was still troubled by pain over the right neck/shoulder junction on the anterior aspect. He noted prominence of the veins there and into her upper arm. The scar in the axillary area was also sensitive. She reported low back pain which occasionally radiates to the anterior right thigh, and a reasonable range of movement in the neck and shoulders although she reported full elevation of the right arm resulted in tingling in her fingers.

6. He considered there was no change to his earlier assessments of 0% WPI for the cervical spine, 5% WPI for the lumbar spine and 0% WPI for the right shoulder.

Associate Professor Myers, vascular surgeon

1. In a report dated 26 April 2016 Associate Professor Myers reported there was little abnormality to find on examination other than slightly dilated superficial veins and the trans-axillary scar.[34]  He noted right shoulder movements were minimally decreased.

   [34] AD2 p 16.

2. Associate Professor Myers diagnosed Shroetter Paget Syndrome which was axillary/subclavian vein thrombosis.

3. He concluded whilst there was a temporal relationship to the development of the subclavian vein thrombosis, given that she had stenosis of the vein over the first rib, he believed the thrombosis was unrelated to the accident. He felt the claimant may have sustained a mild right soft tissue injury to the shoulder.

4. If the scar was found to be related to the accident Associate Professor Myers concluded she would have approximately 2% WPI.

Dr Nigel Ackroyd, vascular surgeon

1. Dr Ackroyd assessed the claimant on 22 April 2019 and by videolink on 25 July 2022.[35]

   [35] AD1 p 113 and 47.

2. He reported following the accident on 9 September 2014 Ms Irving had general soreness over her upper body, sternum and neck area.  Six days after the accident she reported her right arm felt solid and heavy and the veins around the right arm were prominent and painful.  She developed nerve type pains and tingling down the right upper limb.  On 22 September 2019 she had a Doppler ultrasound study which showed a right subclavian vein thrombosis. She was started on Clexane and on 7 October 2014 she had Urokinase thrombolysis and venoplasty to open up the vein. A duplex scan of January 2015 showed re-clotting of the right subclavian bean and the return of swelling.  On 24 February 2015 she underwent a right first rib resection via an axillary approach and a week later a further venoplasty to reopen the right subclavian vein (SCV).

3. In his report dated 25 July 2022 Dr Ackroyd reported the right shoulder girdle becomes uncomfortable on extremes of movement.  Ms Irving develops an aching pain in the region of her right upper chest and shoulder area with use associated with engorgement of the veins associated with mild swelling and heaviness. He reported she had not undergone any investigations since six months after the surgery. 

4. He reported prior to the accident Ms Irving had no symptoms to suggest thoracic outlet obstruction and she was an active tennis player and swimmer.

5. Dr Ackroyd concluded the right upper limb DVT was caused by the accident. He felt the impact that resulted in significant neck pain also affected the muscles at the thoracic outlet. He stated:

   “That the impact was significant in terms of her neck is evidenced by the apparent brachial plexus injury resulting in tingling down her right arm and the ongoing neck and supraclavicular fossa pain for the next couple of weeks.”

6. Dr Ackroyd noted the right subclavian vein (SCV) exits the thorax over the top of the first rib and is bounded posteriorly by the scalenus anterior muscle and anteriorly by the subclavius muscle and the costo-clavicular ligament. He suggested if those muscles were injured and swollen at the time of the accident they would impinge on the right SCV and potentially occlude it.  He stated muscle injury was evidenced by the pain in the neck and the supraclavicular fossa. He stated that may also have been a degree of “splinting” of the neck by contraction of the scalenus muscles which may have constricted the SCV across the 1^st rib.

7. Dr Ackroyd suggested other causes of injury to the vein may have included a shearing force from impact or a sudden barotrauma to the vein from an abrupt rise in the intrathoracic pressure from the seat belt and impact.

8. Whilst he concluded the precise cause was conjectural there was nothing to suggest a pre-existing problem and on the balance of probabilities he concluded the accident was the cause of the right SCV DVT.

9. Dr Ackroyd discounted the suggestion of Dr Myers of an underlying predisposition to developing a thrombus by virtue of an undiagnosed thoracic outlet obstruction noting as an active tennis player and swimmer he could exclude any predisposing issues. He also noted the DVT occurred within six days of the accident.

10. Dr Ackroyd assessed WPI by analogy using Table 13 of the AMA 4 Guides on page 197. He found Ms Irving would fall into Class 2 upper extremity movement (UEI) as she experiences discomfort at the extremes of movement and usage.  The range is 10% to 39% and he estimated the impairment fell at the mid to upper portion of the range at 30% UEI which is 18% WPI.  He described the scan as unobtrusive and well healed and assessed the scar using the TEMSKI guidelines at 1% WPI. Using the combined tables, he arrived at a final WPI of 19%.

Dr Richard Powell, orthopaedic surgeon

1. Dr Powell assessed Ms Irving at his London rooms and provided a report dated

   
   

   2 September 2022.[36]

   [36] AD2 p 25.

2. He reported in addition to the vascular issues Dr Powell diagnosed a musculoligamentous injury of both the cervical spine and the lumbar spine and an aggravation of minor underlying spondylotic change.

3. Dr Powell assigned DRE cervicothoracic category II resulting in 5% WPI of the cervical spine. He assigned DRE lumbosacral category 1 resulting in 0% WPI of the lumbar spine and 1% WPI relating to the right shoulder. In relation to the right shoulder, he reported in accordance with figure 41 on page 44 the measured range of abduction 150º is allocated 1% upper extremity impairment (UEI), in accordance with figure 44 on page 45 the measured range of internal rotation of 70º is allocated 1% UEI, resulting in a total UEI of 2% which converts using Table 3 to a 1% WPI.

4. He concluded Ms Irving did not require any personal or domestic assistance as a result of the musculoskeletal injuries to the cervical spine, the lumbar spine or the right shoulder. However, he felt it would have been reasonable for her to receive assistance with the more physical elements of domestic duties in the past by reason of the vascular injury to the right upper limb. 

Dr Vickery, psychiatrist

1. Dr Vickery provided a report dated 31 January 2023 following an assessment conducted by telehealth on 16 January 2023.[37] 

   [37] AD2 p 36.

2. Dr Vickery diagnosed a somatoform chronic pain disorder on the basis there was no medical evidence for Ms Irving’s incapacitating pain perception and reduced functionality. He also concluded Ms Irving had a persistent depressive disorder due to multiple personal stressors arising from the marital separation, work stressors and the move to the United Kingdom. 

SUBMISSIONS

Claimant’s submissions

1. The claimant provided submissions dated 21 December 2022 in support of the application for review.[38]

   [38] AD1 p 4.

2. The claimant submitted that Medical Assessor Cameron failed to provide reasons for his determination that domestic assistance does not relate to the injury.

3. Similarly, the claimant submitted Medical Assessor Cameron assessed a 0% WPI because the DVT had resolved and was not associated with assessable impairment. It is noted that residual peripheral vascular disease was assessed as a separate injury. The claimant submits Medical Assessor Cameron failed to explain why it was not appropriate to assess her condition by analogy using Table 13 of the AMA 4 Guides page 197. The claimant submits she was denied procedural fairness.

The insurer’s submissions

1. The insurer provided submissions dated 30 January 2023 in respect of the review application.[39]

   [39] AD2 p 1.

2. The insurer disputes the claimant’s assertion that Medical Assessor Cameron did not provide reasons for his determination that domestic assistance does not relate to the injury and refers to paragraphs 28, 29 and 31 of his certificate and reasons.

3. In respect of the claimant’s assertion that Medical Assessor Cameron used Table 17 of the AMA 4 Guides as opposed to Table 13 the insurer submits the tables are materially the same and the outcome would be the same regardless of which table was used.

4. The insurer provided submissions dated 7 June 2019 in respect of the treatment dispute.[40] The insurer notes that causation of the right upper limb DVT was the issue to be determined in that dispute.

   [40] AD2 p 5.

5. The insurer notes that in addition to the opinion of Associate Professor Myers there was an absence of sufficient force to affect the veins which occluded on the right hand side to give rise to the clots which developed.

6. The insurer provided further submissions dated 11 October 2019 in respect of the treatment dispute.[41]

   [41] AD2 p 8.

7. The insurer submits there is no history or complaint of specific injury, whether by impact or compression or otherwise, to the right shoulder or arm in the accident.  At Prince of Wales Hospital Ms Irving complained of gradual onset neck pain and was discharged the same day. She returned to work the following day and a week or so later noticed the veins in her right arm become visibly prominent and she experienced pins and needs, discomfort and swelling.  The insurer contends the delay in onset of symptoms demonstrates a lack of nexus between the accident and the right upper limb DVT.

8. Further, the insurer relies upon the opinion of Associate Professor Myers to dispute the nexus between the right upper limb DVT and the accident and where it is not causally related submits it cannot result in permanent impairment.

9. The insurer submits having regard to the findings of Associate Professor Myers any back issues had resolved by the time of his assessment.

MEDICAL EXAMINATION

1. Ms Laura Irving attended the assessment by herself on 14 September 2023. Ms Irving was assessed by Medical Assessor Wing Chan in his rooms at Manly.

2. Ms Irving confirmed that she was sitting in the front passenger seat of the car wearing a lap and sash seatbelt. The car she was travelling in hit the passenger side of the other car resulting in the deployment of the passenger and driver’s side airbags. After the collision she felt pain in the right side of the neck, the right trapezius area, pain in the lower back and her right hip.

3. Six days after the accident, in addition to pain in her neck, Ms Irving noted that her right arm felt heavy and some tingling sensation on the outside of the right arm. She then commenced physiotherapy with Ms Anna Lanyon.

4. Two weeks after the accident, Ms Irving still had swelling in her right arm. She consulted Dr Butterworth, a GP in Circular Quay, who referred her to have an ultrasound of her right shoulder on 25 September 2014. The ultrasound showed the presence of mild tendonitis of the supraspinatus and no evidence of rotator cuff tear.

5. Three weeks after the accident, on 1 October 2014, Ms Irving consulted Dr McDonald, a sports medicine physician, on the suggestion of Ms Lanyon. Dr McDonald noted that her right upper limb was swollen with prominent veins in the right anterior chest wall and on her right arm. Dr McDonald referred her to have a Doppler ultrasound which confirmed the that she had thrombi in right brachial, axillary and subclavian veins. After conferring with Professor Omari, a vascular physician, she was commenced on Clexane, an anti-coagulant.

6. The pain in Ms Irving’s right arm got worse despite the treatment with Clexane.

   
   

   Ms Irving went to the Emergency Department of the Prince of Wales Hospital and came under the care of Dr Shannon Thomas, a vascular surgeon, who dissolved the clot on 7 October 2014. She was treated with the oral anti-coagulant, Xarelto. She was advised by Dr Thomas that the vein could be damaged as it crossed over the right first rib and she could experience rethrombosis of the veins. The removal of the right first rib would reduce the risk of rethrombosis of the right arm veins.

7. Ms Irving said she consulted Professor Omari on 23 December 2014 about the removal of the right first rib proposed by Dr Thomas. Prof Omari advised her to stop Xarelto and commenced her on 100mg of Aspirin and advised he would reassess her in eight weeks with another Doppler ultrasound.

8. When Dr Thomas saw Ms Irving on 2 February 2015, six weeks after she stopped the Xarelto anti-coagulant, her right arm became more painful and the surface veins appeared more prominent. A repeat Doppler confirmed rethrombosis of the right arm veins.

9. On 24 February 2015, Ms Irving had resection of her right first rib by Dr Thomas. A week after the resection, on 1 March 2015, she had angioplasty to clear the thrombi in the right brachial and axillary veins by Dr Thomas. Ms Irving was discharged home on 6 March 2015 with anti-coagulation medication.

10. Ms Irving’s mother came over from England to help her out for three weeks in

    
    

    March 2015. Her mother helped her to dress her, clean her apartment and cooked for her and her husband.

11. The insurer provided Ms Irving with a cleaner for two hours a week for six weeks after she had the first rib resection.

12. On 30 March 2015, Dr Thomas asked Ms Irving to stop the Xarelto and take only the Aspirin.

13. Three weeks after the surgery Ms Irving returned to full-time work where she had to meet clients to discuss the project she was looking after.

14. The pain in her right lateral chest wall/axilla where the incision was made to access and excise the right first rib decreased over the next three months. However, Ms Irving said that after the surgery, she had pain in her right upper chest, right arm, right trapezial area and the right side of her neck. The pain affected her ability to undertake keyboard work.

1. Dr Thomas reviewed Ms Irving on 28 September 2015. Dr Thomas reported that

   
   

   Ms Irving was pregnant and swimming regularly. Ms Irving said she was swimming with breaststroke or front crawl, and not freestyle as she could not raise her right arm fully.

2. In May 2015, her work changed from a client-facing role to a predominantly internal facing role with members of her project team.

3. Ms Irving said she fell pregnant in July 2015 and gave birth to her daughter in

   
   

   March 2016. Her parents came over from England and helped her for five weeks. She then flew back to England and stayed with her parents for six weeks.

4. Ms Irving was on maternity leave from February 2016 to February 2017.

5. When she returned to work in February 2017, Ms Irving initially worked one to two days a week, gradually increasing the days worked during March 2017.  In April 2017, she officially reduced her hours to working part time as an operation manager. Ms Irving described it as 22.5 hours per week, doing three day’s work over 4 days.

6. Ms Irving said she had pain in her lower back and right hip after the accident and she had treatment to her lower back by a chiropractor.

7. On 7 June 2019, Ms Irving and her husband moved back to England.

8. Upon arrival in England, they stayed at her sister-in-law’s (husband’s sister) place for five weeks. They then moved to serviced accommodation where they stayed for two weeks before they found and rented the current semi-detached house in Amersham on 18 July 2019.

9. Ms Irving separated from her husband in September 2019.

10. Ms Irving has continued to live with her daughter in the house at Amersham.

11. Ms Irving said that she had sustained no further injury since the accident.

Current symptoms

1. Ms Irving said she had dull ache in the anterior part of the right shoulder/pectoral area, right suprascapular area and right side of her neck (right trapezial area) all the time. Her right arm felt heavy if she let her right arm hang on the side, unsupported. She would walk with her right hand in the right coat pocket or the pocket of her right trousers when possible so that her right arm is supported. The dull ache in the right shoulder trapezial area is worse when she drives for more than half an hour with her right hand on the steering wheel.

2. Repetitive movement of her right hand whilst doing tasks such as using a vacuum cleaner, scrubbing the floor or cleaning the window with the right arm raised and using a circular motion, exacerbate the pain in her right shoulder and trapezial area.

3. Ms Irving said the dull ache had been present since the resection of the first rib.

4. She has no complaint in respect of her right elbow, right forearm, wrist or right hand.

5. Ms Irving reported she has pain in her left lower back on prolonged sitting or walking for more than half an hour. The pain radiates to the posterior aspect of her left thigh to the left knee and to the anterior part of her left leg.

6. Apart from this, Ms Irving had no complaint regarding her right and left lower limb.

History in respect of claim for domestic assistance

1. Before the accident on 9 September 2014, Ms Irving lived in a unit with her husband. She was able to do all the housework, including cleaning the unit, vacuuming the floor, and attending to the laundry and cooking. 

9 September 2014 to 24 February 2015

1. In the period from 9 September 2014 until 24 February 2015 when she was admitted to Prince of Wales Hospital to have the right first rib excised the claimant’s husband attended to all household tasks including cleaning, laundry, cooking and shopping.

24 February 2015 to 5 March 2015

1. In the period 24 February 2015 to 5 March 2015 Ms Irving was an inpatient at Prince of Wales Hospital.  She was discharged on 6 March 2015.

6 March 2015 to 15 April 2015 (approximately)

1. From 6 March 2015 for a period of approximately six weeks the insurer funded a cleaner for two hours a week. The cleaner cleaned the bathroom, the toilet and kitchen and attended to vacuuming, mopping and dusting. Ms Irving’s mother travelled from England to help Ms Irving for three weeks from 6 March 2015.

15 April 2015 to 7 June 2019

1. In the period from 15 April 2915 to 7 June 2019 after the support from the insurer ceased Ms Irving secured the services of a cleaner. The cleaner undertook vacuuming, mopping, and dusting for two to three hours a week.  Ms Irving’s husband undertook the day to day tidying and cleaning and hung out the washing. Due to an increase in the cost of the cleaner Ms Irving reduced the service to those occasions when her husband was away or was too busy with work to assist with the household tasks.

2. Ms Irving estimated the household cleaning tasks took seven to eight hours a week.  She attempted to vacuum or dust but paced herself and stopped every few minutes to rest.

3. Following the birth of her daughter in March 2016 Ms Irving’s parents came from England to help her for five weeks. She returned to England with them and stayed with her parents for a further six weeks.  Her parents undertook the domestic tasks during these two periods.

7 June 2019 to September 2019

1. On 7 June 2019 Ms Irving and her husband returned to England. Ms Irving and her husband stayed with her sister in law for the first five weeks and the next two weeks in a serviced accommodation after her arrival in England before moving into a rented semi-detached house in Amersham.

2. The semi-detached house has three levels, a ground floor, first and second floor.  On the ground floor is the lounge, the kitchen and a toilet.  On the first floor is her daughter’s bedroom, Ms Irving’s bedroom, a bathroom and a toilet. On the second floor is a one room office-cum-playroom. Ms Irving has a stand-up type of table for her computer as shown in the photographs furnished to the Commission.

September 2019 to March 2020

1. Ms Irving and her husband separated in September 2019.  After she separated from her husband Ms Irving said when she used a vacuum cleaner, or used her right arm to scrub, she experienced tingling in her right hand and exacerbated the dull ache in her right trapezial and right pectoral area.

2. As a result, in the period from September 2019 to March 2020 Ms Irving paid a cleaner to clean her house for two hours twice a week including vacuuming, mopping and dusting.  Her good friend was living in the house on the other side of the same street and helped her with loading and removing the laundry from the washing machine and the dryer. 

March 2020 to date

1. In March 2020 Ms Irving reduced the cleaning assistance to two hours per week. 

2. During lockdown as a result of COVID-19 the cleaner could not attend. Ms Irving formed a “bubble” with her friend across the street and she assisted Ms Irving with cleaning and laundry.

3. Ms Irving said she continues to engage a cleaner for two hours per week.  In addition to vacuuming and dusting Ms Irvine stated she needs helps with the changing the curtains twice a year and with other tasks, for example, light bulb replacement. She also had her windows cleaned once a month which took one hour and arranged for her chimney to be cleaned by a professional chimney cleaner once a year.

Medical examination 

1. On inspection, the superficial veins on her right arm and right pectoral area are more prominent than the left side. The shoulder girdle musculature in the right shoulder girdle was the same as the left shoulder girdle. Hence, there was no wasting in the right shoulder compared to the left shoulder. The right and left radial pulse were present, regular at 72 beats/minute. Ms Irving had no swelling/oedema, and no pain in her right arm. Ms Irving was very self-conscious of the prominent superficial veins on her right arm and pectoral area.

Scarring

1. A horizontal scar 8 cm long and 0.2cm wide, was located on the right lateral chest wall, just below the right axilla. Ms Irving said she was barely conscious of the scar but could locate it.  There was mild pigmentation and no suture marks on the scar. The colour of the scar blends in well with the surrounding skin and is not easily locatable. The scar is not visible with normal clothing. There was no trophic changes, no adherence to the underlying structure, no effect on ADL and no treatment is required. Ms Irving commented that most patients with this surgery had the scar above the right clavicle.

1. Ms Irving said that after the surgical removal of the right first rib, she could not lift or hold down a vacuum cleaner or do tasks which involved  pressure on the surface combined with circular or to and fro motions such as scrubbing the floor or wiping the  window with a piece of cloth.

Cervical spine

1. There was tenderness but no guarding or muscle spasm in the right paracervical muscles of the cervical spine. Touch sensation, muscle strength and the upper limb tendon reflexes were present and equal on both sides and normal in both upper limbs. There was no dysmetria, and no non-verifiable radicular complaint . The girth of the right and left arm measured at the same distance proximal to the lateral epicondyles  was 33cm in the right arm and 32.5 cm in the left arm. The girth of the right forearm measured at 10 cm from the lateral epicondyle was 29cm in the right forearm and 28.5 cm in the left forearm consistent with her right hand dominance.

Right and left shoulder joint

1. The active range of movement of her right and left shoulder was measured with a goniometer. The best range of motion was recorded in the table below.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160°	160°
Extension	35°	35°
Adduction	30°	30°
Abduction	160°	170°
Internal Rotation	90°	90°
External Rotation	90°	90°

1. The range of motion [ROM] in her right shoulder was the same as the uninjured left shoulder, except for the abduction plane of motion which was slightly less in the right shoulder. She said the muscles around her shoulders were tight. Hence the left shoulder’s ROM is less than the normal range for flexion, abduction, extension and adduction.

Lumbar spine

1. Ms Irving walks with a normal gait. She could stand on her toes and on her heels.  She had the normal lordosis in her lumbar spine. There was no tenderness, no guarding and no muscle spasm in her lumbar spine. She had a full range of movement for flexion and extension of her lumbar spine. Lateral flexion to the right side was the same as to the left side. Hence, there was no dysmetria in her lumbar spine movement. She had no non-verifiable radicular complaints. The lower limb, touch sensation, power, and tendon reflexes were present and normal and the sciatic stretch test was negative in both lower limbs.

PANEL FINDINGS

Consistency of presentation

1. Medical Assessor Chan had an opportunity to assess the consistency of the claimant’s presentation. Medical Assessor Chan formed the view Ms Irving was a straight forward genuine historian. He noted the consistency of the history she provided to all medical examiners and concluded the clinical findings of thrombosis of the right upper limb veins were consistent with the accident.

Causation 
Right upper arm venous thrombosis

1. Before the accident Ms Irving had no symptoms that would suggest thoracic outlet obstruction. She used to play tennis and swim without any problem and there was no history of specific injury.

2. Ms Irving was in the front passenger seat when her car crashed into the passenger side of the car at fault at an intersection. The driver and passenger side airbags were deployed. In her statement Ms Irving said “I was thrust forward into the airbag at point of impact, crushing and breaking a cosmetic compact I was holding in my right hand between myself and the airbag. I used my feet and left hand on the door to brace myself”.

3. The ambulance report stated that Ms Irving complained of right hip pain, gradual onset of pain in the neck and the gradual onset of a left shoulder ache.

4. Ms Irving reported over the next couple of days after the accident, swelling with pain developed in her right arm.  An ultrasound of her right shoulder was performed. The ultrasound of the right shoulder dated 25 September 2014 showed mild tendonitis of the right supraspinatus and minimal bursitis. She had treatment by physiotherapist Anna Lanyon who referred her to Dr McDonald about her right arm pain.

5. On 1 October 2014, three weeks after the accident Dr McDonald reported that

   
   

   Ms Irving had noticed more prominent swelling of the right upper limb and venous congestion over the right anterior chest wall and right upper limb. An ultrasound ordered by Dr McDonald confirmed a significant thrombosis involving the right subclavian vein, axillary vein and brachial vein to the level of the elbow. Dr McDonald noted that she had no family history of thromboembolic disease. After a phone consultation with Professor Omari, vascular physician she was anticoagulated with Clexane.

6. The pain in her right arm got significantly worse in the ensuing days and Ms Irving presented at the Emergency Department of Prince of Wales Hospital and was placed under the care of Dr Shannon Thomas, vascular surgeon. On 7 October 2014

   
   

   Dr Thomas dissolved the clot with Urokinase and removed the clot in the right subclavian vein.  After the procedure, she was anticoagulated with Xarelto.

7. In his report dated 23 December 2014 Professor Omari stated that the vascular ultrasound reveal ongoing non-occlusive thrombus within the upper limb vessels with collaterals and some dynamic compression of the proximal upper limb vein with abduction of the arm.

8. Dr Thomas reviewed Ms Irving on the 5 January 2015. He commented that on venography, “we found the subclavian vein to be tightly stenosed where it crossed the first rib. This point was angioplastied ….” Ms Irving indicated to Dr Thomas that during her visit to St Vincent’s Hospital some compression of the upper limb veins was demonstrated to her on abduction of her right arm. Dr Thomas recommended to her the removal of the right first rib to prevent re-narrowing and rethrombosis of the right subclavian vein. She was somewhat hesitant about the surgery.

9. When Dr Thomas reviewed Ms Irving on 2 February 2015 he reported that her right arm was becoming more painful with the surface veins appearing more prominent. He noted a recent ultrasound showed the vein to be patent but with significant residual thrombus in the subclavian vein.

10. Dr Thomas performed the resection of the right first rib on 24 February 2015 followed by angioplasty to open the rethrombosed right deep brachial and axillary veins on

    
    

    1 March 2015.

11. Six months after the angioplasty on 28 September 2015 Dr Thomas reported Mr Irving was pregnant and swimming regularly with no real upper limb problems. She was no longer on any anticoagulant/antiplatelet and a recent ultrasound of the subclavian veins showed some chronic clot but no acute changes.

12. The insurer referred Ms Irving to see Associate Professor Myers on 21 April 2016. He noted that she had stenosis of the right subclavian vein where it crossed the 1st rib but expressed the opinion that the thrombosis in the right brachial, axillary and subclavian veins was not caused by the accident although he felt she may have sustained a mild right soft tissue injury to that shoulder.

13. Ms Irving’s lawyers referred her to Dr Ackroyd on 22 April 2019. Dr Ackroyd commented on the likely mechanism for thrombosis of her right upper limb veins after the accident and opined that the thrombosis in the right upper limb was caused by the accident.

14. Medical Assessor Cameron concluded that the DVT in Ms Irving’s right upper arm was caused by the accident.

15. In Briggs v IAG Limited t/a NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[1] His Honour stated at [70]-[72]:

    “70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

    ‘138   Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

    ‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

    71.    The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

    ‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

    [1] Briggs [2022] NSWSC 372.

16. With regard to causation of the thrombosis in Ms Irving’s right upper arm veins, the Panel noted the following evidence:

    ·        before the accident, Ms Irving  played tennis and swam with no problem;

    ·        she had no history of injury to her right arm or shoulder before the accident;

    ·        in the accident, the airbag was deployed on impact and the force of the inflation of the airbag hit her right hand and broke the cosmetic compact held in her right hand;

    ·        Mrs Irving complained of pain in both shoulders after the accident;

    ·        pain and swelling developed in her right upper arm in the days following the accident;

    ·        the pain and swelling in her right upper limb got worse over the immediate weeks after the accident;

    ·        the venous doppler conducted on the 1 October 2014, three weeks after the accident revealed that she had occlusive thrombus in the right brachial vein, axillary vein that extended from the elbow to the subclavian vein, and

    ·        the reasoning of Dr Ackroyd and Assessor Cameron who were of the opinion that the thrombosis in the right upper arm veins was caused by the accident.

17. Having considered the absence of family history of venous thrombosis in Ms Irving, the lack of other risk factors, the temporal relationship of the accident and the onset of her symptoms and noting the legal test in respect of causation does not require scientific certainty, the Panel concluded that the venous thrombosis in Ms Irving’s right upper arm was causally related to the accident.

Lumbar spine

1. The ambulance report noted complaints of right hip pain and superficial hyperaemia to the right iliac region with pain described as an “external ache”.

2. Whilst there is limited record of complaint pertaining to the lumbar spine thereafter,

   
   

   Ms Irving confirmed she suffered pain in the lower back. The Panel accepts that the claimant’s focus following the accident was on the developing right subclavian vein thrombosis. 

3. The Panel finds the claimant sustained a soft tissue injury to the lumbar spine in the accident.

Assessment of permanent impairment
Right rib excision due to right subclavian vein thrombosis

1. There is no assessable impairment associated with the excision of the right rib. Hence, the permanent impairment is 0% WPI.

Right upper limb - thrombosis of brachial, axillary, and subclavian veins

1. The thrombosis in all the veins has resolved and there is no impairment related to the veins. Hence there is no assessable impairment related to the veins. This was consistent with the conclusion of Medical Assessor Cameron. 

2. However, the Panel accepts the claimant sustained upper extremity peripheral vascular disease resulting from vascular trauma.

3. It is noted that residual peripheral vascular disease was assessed as a separate injury. The claimant submits Medical Assessor Cameron failed to explain why it was not appropriate to assess her condition using Table 13 of the AMA 4 Guides on page 197.

4. Paragraph 1.238 of the Guidelines states:

   “Vascular diseases affecting the extremities (pages 196–198, AMA4 Guides): Impairments due to upper or lower extremity peripheral vascular disease resulting from vascular trauma must be assessed using the ‘Musculoskeletal’ Chapter of the AMA4 Guides. Tables 13 and 14 (pages 197–198, AMA4 Guides) must not be used.”

5. Paragraph 1.239 of the Guidelines states:

   “Impairment scores from Table 17 ‘Impairment of the upper extremity due to peripheral vascular disease’ (page 57, AMA4 Guides) and Table 69 ‘Impairment of the lower extremity due to peripheral vascular disease’ (page 89, AMA4 Guides) must be converted to WPI.”

6. However, the Panel notes that paragraph 1.238 of the Guidelines specifically states that tables 13 and 14 must not be used and therefore, it is appropriate to assess the impairment under Table 17 on page 57 of the AMA 4 Guides.

7. Ms Irving is no longer taking anti-coagulant medication. Referencing Table 17 on page 57 of the AMA 4 Guides, the Panel noted Ms Irving had no pain at rest, no swelling, no claudication and no sign of vascular damage. The Panel finds she is on the lower end of Class 1, that is 4% upper extremity impairment (UEI). Under table 2, page 20 of the AMA 4 Guides 4% UEI converts to 2% WPI.

Lumbar spine

1. The Panel finds the claimant sustained a soft tissue injury to the lumbar spine caused by the accident. Using the ‘Diagnosis Related Estimate’ method, Ms Irving had no guarding, no dysmetria, no non-verifiable radicular complaint, and no other clinical sign in her lumbar spine. These findings would qualify her for DRE Lumbosacral Category l which equates to 0% WPI.  She had no symptoms or signs present that would satisfy the criteria for assessment as DRE Category ll.

Scarring

1. A horizontal scar 8 cm long, 0.2cm wide, was located on the right lateral chest wall, just below the right axilla. She is barely conscious of the scar but could locate it.  There was mild pigmentation and no suture marks on the scar. The colour of the scar blends in well with the surrounding skin and not easily locatable. The scar is not visible with normal clothing. There were no trophic changes, no adherence to the underlying structure, no effect on ADL and no treatment is required. Assessing the scar with reference to the TEMSKI scale, Table 6.18 Motor Accident Guidelines, using the principle of best fit the Panel assesses Ms Irving’s scarring at 0% WPI.

2. The Panel finds the claimant has sustained a total impairment of 2% WPI.

Treatment disputes

Past medical treatment

1. Having regard to the findings on causation as to the right subclavian and in line with the decision in AAI Limited v Phillips[42] the Panel is satisfied the treatment for the right upper limb DVT would not have arisen but for the accident. The Panel finds the following treatment from the date of accident to date related to the injury caused by the accident and was reasonable and necessary in the circumstances:

   [42] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.

   ·        GP consultations in relation to right upper limb DVT;

   ·        specialist consultations in relation to right upper limb deep DVT;

   ·        investigations in relation to right upper limb DVT;

   ·        any scans in relation to right upper limb DVT;

   ·        any hospitalisations in relation to right upper limb DVT;

   ·        any procedures in relation to right upper limb DVT;

   ·        any surgeries in relation to right upper limb DVT;

   ·        any medications in relation to right upper limb DVT;

   ·        any proposed physiotherapy in relation to right upper limb DVT, and

   ·        any counselling in relation to right upper limb DVT.

Future medical treatment

1. A claim is also made for future treatment from the date of the medical assessment and continuing for claimant’s life expectancy.

2. In his report dated 25 July 2022 Dr Ackroyd stated:

   “Venous thombectomy, balloon angioplasty, urokinase thrombolysis, anticoagulation and first rib resection have produced a good result in this patient with a good early response to the swelling that was evidence from the DVT.

   As this DVT was the result of a severe provocation event it is unlikely that she will have any further problems in this direction in the future.”

3. Associate Professor Myers concluded Ms Irving should have no further issues with regard to the right-sided venous system.

4. Ms Irving is no longer on medication or undertaking any treatment for the right upper limb DVT. The Panel finds Ms Irving has undergone effective and permanent treatment. There is no suggestion further treatment will be required for the right upper limb DVT.

5. The Panel finds the following treatment from the date of the medical assessment and continuing for the claimant’s life expectancy is not related to the injury caused by the accident and is not reasonable and necessary in the circumstances:

   ·        proposed GP consultations in relation to right upper limb DVT;

   ·        any proposed specialist consultations in relation to right upper limb DVT;

   ·        any proposed investigations in relation to right upper limb DVT;

   ·        any proposed scans in relation to right upper limb DVT;

   ·        any proposed hospitalisations in relation to right upper limb DVT;

   ·        any proposed procedures in relation to right upper limb DVT;

   ·        any proposed surgeries in relation to right upper limb DVT;

   ·        any proposed medication relation to right upper limb DVT;

   ·        any proposed physiotherapy in relation to right upper limb DVT, and

   ·        any proposed counselling in relation to right upper limb DVT.

Past domestic assistance in relation to the right upper limb DVT

1. Ms Irving has been consistent in the histories she has provided to medical examiners of the difficulties she has experienced performing domestic tasks.

2. In her statement dated 11 August 2018 Ms Irving stated she had difficulty with repetitive tasks or tasks that involve bending, lifting or twisting or any activity involving her right arm and shoulder. She stated she could not do scrubbing, mopping or change the bed linen or hang out heavy washing. She could not store or retrieve items from above shoulder height and could only vacuum and iron in short intervals. She was unable to carry heavy shopping or lift heavy pots when cooking. She stated in addition to some paid domestic assistance her husband was performing the majority of the household cleaning.

3. On page 5 of his report dated 3 October 2018 Dr McGroder stated:

   “ As far as her right neck/arm pain is concerned, she now does not have any symptoms involving her arm, although she has a constant aching sensation at the neck/shoulder junction. She occasionally gets some tingling in the right arm and this comes on after she has sustained elevation of the arm. She finds that she develops problems with the neck/shoulder/arm area after using significant force and after repetitive use. She has difficulty with tasks such as a washing and doing any reaching. She has difficulty with tasks such as washing and drying her hair. She has difficulty with pushing and pulling.”

4. On page 2 of his report dated 20 May 2019 Dr McGroder stated:

   “As far as her vascular problems are concerned, there has been no change. … She still gets some problems with her right neck/shoulder/arm area when she uses force with the right arm, with repetitive use of the right arm, with sustained elevation of the right arm, and when there is static load on the right arm.  She said occasionally the area just above the clavicle swells and she said occasionally she gets pins and needles in her hand when she keeps her arm in one position.”

5. On 25 July 2022 Dr Ackroyd reported the right shoulder girdle becomes uncomfortable on extremes of movement.  Ms Irving develops an aching pain in the region of her right upper chest and shoulder area with use associated with engorgement of the veins associated with mild swelling and heaviness. Dr Ackroyd also stated:

   “The ache and the pain tend to be worse as the week progresses towards Friday and then she says she can then recuperate over the weekend”.

   Her ADL’s are restricted to a mild/moderate degree depending on the activity. For example, vacuuming and the repetitive movement associated with this task bring on aching in the right shoulder and muscle fatigue.

   General kitchen and cooking activities are manageable but repetitive chopping of hard vegetables is a little uncomfortable in the shoulder. To this end she uses lightweight utensils.”

6. In his certificate dated 1 December 2022 Medical Assessor Cameron recorded the following history:

   “Ms Irving said she had neck pain, particularly felt in the right side of her neck, right  upper chest, right trapezial pain. There is heaviness in the right arm, particularly if she uses it repetitively.

   Ms Irving said she finds driving difficult. If her arm is hanging down, for example if she walks for a long period, there is more pain. There is also low back pain.”.

7. Medical Assessor Chan obtained a history from Ms Irving of an exacerbation of her pain in the right shoulder and trapezial area by tasks requiring repetitive movement of her right hand such as vacuuming, scrubbing the floor or cleaning the windows.

Whether the domestic assistance relates to the injury caused by the accident

1. The Panel accepts the claimant continues to experience pain in the right shoulder and trapezial area associated with the upper extremity peripheral vascular disease which was caused by the accident.  

2. The Panel also accepts the need for domestic assistance with tasks involving the repetitive movement of her right upper limb such as vacuuming, dusting and scrubbing relates to the ongoing impact of the upper extremity peripheral vascular disease.  The Panel finds that domestic assistance does relate to the injury caused by the accident.

Whether the domestic assistance was or is reasonable and necessary in the circumstances

1. The history provided by the claimant and supported overwhelmingly by the medical opinion, except for Dr Powell, is consistent with an ongoing need for domestic assistance with tasks requiring the repetitive movement of the right upper limb including vacuuming as a result of the upper extremity peripheral vascular disease. 

2. Indeed, even Dr Powell felt it would have been reasonable for her to receive assistance with the more physical elements of domestic duties in the past by reason of the vascular injury to the right upper limb although he did not support the need for ongoing assistance.  However, the Panel finds there has been no evidence of any significant improvement in the claimant’s condition and that she has continued to require assistance with vacuuming, scrubbing and other tasks requiring repetitive movement of the right upper limb.

3. The claimant has consistently engaged the services of a cleaner for at least two hours per week, other than a number of short periods of time when she was otherwise assisted by family members or during the COVID-19 lockdown when she continued to receive some assistance from her friend over the road.

4. The claimant has lived alone in a three storey house with her daughter since September 2019 and the Panel finds domestic assistance of two hours per week has been reasonable and necessary in the circumstances to date.  

5. The Panel finds the claimant has required domestic assistance of two hours per week during the following periods:

   ·        9 September 2014 to 24 February 2015;

   ·        6 March 2015 to 7 June 2019, and

   ·        26 July 2019 to date.

CONCLUSION

1. The Panel revokes the Certificate of Medical Assessor Cameron dated
   1 December 2022 and determines that the following injuries were caused by the motor accident and do not give rise to a WPI which is greater than 10%:

   ·        right rib – excision due to right subclavian vein thrombosis;

   ·        skin – scarring from right rib removal;

   ·        right upper arm – DVT;

   ·        lumbar spine – soft tissue injury, and

   ·        right arm – peripheral vascular disease.

2. The Panel revokes the certificate of Medical Assessor Cameron issued under s 61 of the MAC Act dated 1 December 2022 and issues a new certificate certifying the following treatment relates to the injury caused by the accident and was reasonable and necessary in the circumstances:

   (a)    GP consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (b)    specialist consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (c)    investigations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (d)    any scans in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (e)    any hospitalisations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (f)    any procedures in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (g)    any surgeries in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (h)    any medications in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (i)    domestic assistance for two hours per week for the periods 9 September 2014 to 24 February 2015, 6 March 2015 to 7 June 2019 and from 12 July 2019 to date in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date;

   (j)    any physiotherapy in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date, and

   (k)    any counselling in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from date of accident to date.

3. The Panel certifies the following treatment does not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances:

   (a)    any proposed GP consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(b)    any proposed specialist consultations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(c)    any proposed investigations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(d)    any proposed scans in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(e)    any proposed hospitalisations in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(f)    any proposed procedures in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(g)    any proposed surgeries in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(h)    any proposed medication in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy;

(i)    any proposed physiotherapy in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy, and

(j)    any proposed counselling in relation to right upper limb DVT (also described as an axillary/subclavian vein thrombosis, Paget-Shroetter syndrome and von Shroetter Disease) from the date of the medical assessment and continuing for claimant’s life expectancy.