Isaac v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Isaac v AAI Limited t/as GIO [2023] NSWPICMP 676
CLAIMANT:	Christine Isaac
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Trudy Rebbeck
DATE OF DECISION:	15 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Truskett dated 21 June 2021; treatment and care dispute; the MA found that the treatment and care needs of the claimant did not relate to the injury caused by the accident and are not reasonable and necessary in the circumstances; body areas for review included cervical spine, thoracic spine right and left shoulders, right arm, right and left knees right and left legs; claimant involved in an accident on 25 March 2017 and transported to hospital by ambulance; Panel reviewed causation and found that the claimant did suffer a soft tissue injury to her neck as a consequence of the accident however the Panel was not satisfied the claimants other injuries work as a consequence of the accident on an ongoing basis; Held – the Panel found that if the claimant had a course of up to 10 physiotherapy in relation to her physical injuries and this would assist; the Panel determined that the claimant would have needed to 2 hours of care per week with a gratuitous basis to the date of assessment but thereafter, assistance is not appropriate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel revokes the decision of Medical Assessor Truskett dated 21 June 2021. 2. The Panel determines that the claimant should undergo a course of 10 sessions of physiotherapy over 6-12 months. 3. The Panel determines that the claimant needed two hours of domestic assistance per week from the date of the accident to the date of this assessment but no assistance thereafter. 4. The Panel determines the following; (a) Domestic assistance – causation – whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is causally related to the injury sustained in the subject accident. Yes. (b) Domestic assistance – reasonable and necessary – whether 0-7 hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is reasonable and necessary in relation to the injury sustained in the subject. No, limited to two hours per week from date of accident to date of this certificate. (c) Domestic assistance – causation – whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident. No. (d) Domestic assistance – reasonable and necessary – whether 0-4 hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessors assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained. No. (e) General practitioner (GP) consultations – whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. Whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No. (f) Medical – over the counter – whether any ongoing analgesic mediation in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No. (g) Medical – over the counter – whether any ongoing analgesic medication in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No. (h) Medical specialist consultation – whether any orthopaedic surgeon consultations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No. (i) Medical specialist consultation – whether any orthopaedic surgeon consultations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No. (j) Physiotherapy treatment – whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. Yes, a need for limited physiotherapy is causally related to the accident. (k) Physiotherapy treatment – whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. Yes, but limited to a course of 1-10 sessions of therapy over 6-12 months. (l) Hydrotherapy – whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No. (m) Hydrotherapy – whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No. (n) Pain management program – whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No. (o) Pain management program – whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No. (p) Radiological investigations – whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No. (q) Radiological investigations – whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No. 1.

REASONS

BACKGROUND

Initially Christine Isaac (the claimant) made an application for review of two decisions of Medical Assessor Truskett (the Medical Assessor). The first decision was with respect to a whole person impairment (WPI) assessment. The second decision was with respect to the provision of treatment and care.
The decisions of the Medical Assessor were provided to the parties at different times. The application for review of the WPI assessment of the Medical Assessor was made late and did not proceed. The Panel is only concerned with a review of the decision of the Medical Assessor with respect to the provision of treatment and care.
In relation to the assessment of the treatment and care dispute, the Medical Assessor issued his reasons and certificate dated 10 June 2021. This was not provided to the parties until 18 October 2021.
The Medical Assessor made the finding that the treatment and care needs of the claimant did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances.
The following injuries were referred for assessment by the Medical Assessor:
Body Area:
Cervical Spine
(a)   Injury description: cervical spine (neck – whiplash injury/soft tissue injury/discal injury).
Thoracic Spine
(b)   Injury description: thoracic spine (mid-upper back) – soft tissue injury/discal injury.
Lumbar spine
(c)   Injury description: lumbar spine (lower back) – whiplash injury/soft tissue injury/discal injury.
Ribs
(d)   Injury description: ribs – fractures involving the left 9th and 10th ribs.
Shoulder
(e)   Injury description: right upper extremity (shoulder) – soft tissue injury/tendon and muscle injury.
Arm
(f)    Injury description: right upper extremity (arm) – soft tissue injury/tendon and muscle injury.
Elbow
(g)   Injury description: right upper extremity (elbow) – soft tissue injury/tendon and muscle injury.
Shoulder
(h)   Injury description: left upper extremity (shoulder) – soft tissue injury.
Knee
(i)    Injury description: right lower extremity (knee) – soft tissue injury/tendon and muscle injury.
Leg
(j)    Injury description: right lower extremity (leg) – soft tissue injury/tendon and muscle injury.
Knee
(k)   Injury description: left lower extremity (knee) – soft tissue injury/tendon and muscle injury.
Leg
(l)    Injury description: left lower extremity (leg) – soft tissue injury/tendon and muscle injury.
The Medical Assessor found a 0% WPI.
Concerning the considerations of the Panel, there is a dispute between Christine Issac and the insurer about whether the treatments listed below are reasonable and necessary as a result of the accident and whether:
(a) there is a need for the following treatment and/or care disputes:
(i)domestic assistance – causation – whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is causally related to the injury sustained in the subject accident.
(ii)Domestic assistance – reasonable and necessary – whether 0-7 hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is reasonable and necessary in relation to the injury sustained in the subject.
(iii)Domestic assistance – causation – whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident.
(iv)Domestic assistance – reasonable and necessary – whether 0-4 hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessors assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained.
(v)General practitioner (GP) consultations – whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(vi)GP consultations – whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
(vii)Medical – over the counter – whether any ongoing analgesic mediation in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(viii)Medical – over the counter – whether any ongoing analgesic medication in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
(ix)Medical specialist consultation – whether any orthopaedic surgeon consultations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(x)Medical specialist consultation – whether any orthopaedic surgeon consultations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
(xi)Physiotherapy treatment – whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(xii)Physiotherapy treatment – whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
(xiii)Hydrotherapy – whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(xiv)Hydrotherapy – whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
(xv)Pain management program – whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(xvi)Pain management program – whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
(xvii)Radiological investigations – whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
(xviii)Radiological investigations – whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.

The accident

The claimant was injured in a motor vehicle accident on 25 March 2017. She was stationary behind two other cars. The driver of the insured car, travelling in the opposite direction made a right hand turn and in doing so collided with another car, which in turn then collided with the front left and front of the claimant’s car. Airbags were apparently not deployed, according to the ambulance report.
The claimant was transported after the accident to Westmead Hospital by ambulance.
In hospital the claimant complained of pain in her right elbow, left and right knee and in her neck, in descending order of pain. The claimant was treated in the emergency department but discharged that day.

Injuries

The ambulance report notes the claimant complaining about pain to her right arm and right leg. It was reported that she had right elbow pain, and minor swelling and bruises to the elbow. She also had pain to her right thigh and knee. She was able to weight bear and ambulate unassisted. She denied neck and back pain.
The Medical Assessor referred to the claimant as possibly having broken her left 9th and 10th ribs but the hospital notes made no mention of this. However, a SPECT and CT whole body bone scan undertaken on 12 April 2017 noted fractures of the left 9^th and 10^th ribs posteriorly with corresponding fracture lines and sclerosis.
The claimant had pre-existing complaints of neck pain in October 2015, depression in October 2015, thyroid issues in November 2015 and back and neck pain in July 2016.
The insurer says that the claimant had a long-standing history of more than 10 years of lower back pain and neck pain because of her significant restrictions and disabilities in her daily activities. When asked to articulate the basis of this submission by the Panel, the insurer failed to respond. The Panel understands from some information within the documentation produced by the parties that the claimant had however been on a disability pension for 10 years prior to the accident. The reason for receiving such a benefit is not known.

The review

A review application was made of the treatment and care dispute, and this came before the Delegate of the President. The Delegate was satisfied that there was a reasonable cause to suspect that the medical assessment of the Medical Assessor was incorrect in a material respect. This decision was made on 20 January 2022.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new provisions apply. The review provisions provide at section 7.26(5) of the Motor Accidents Injuries Act 2017 (the MAI Act) that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles of documents upon which they rely. The parties complied with this direction.

The claimant’s submissions

The claimant noted that the Medical Assessor made a finding that the claimant’s treatment and care needs do not relate to the injury caused by the accident and are not reasonable and necessary in the circumstances.
The claimant noted that the Medical Assessor said that based on the documentation reviewed and physical examination there could be no causation for the injuries claimed. However, the claimant said that the Medical Assessor had made findings which are substantially inconsistent and contradictory with his findings relating to WPI assessment of the claimant. The claimant submitted that the Medical Assessor determined in the WPI dispute that the injuries were caused by the accident but in treatment/care dispute, he determined that there was no causation for the injuries. The claimant submitted that the Medical Assessor had failed to properly assess the claimant’s injuries and the dispute at hand by providing two different findings/opinions which clearly contradict each other.
The claimant submitted that her physical injuries established that such injuries were;
(a)   caused and related to the subject accident;
(b)   she continues to suffer from ongoing issue/symptoms because of these injuries;
(c)   her physical injuries warrant the need for treatment and care, and
(d)   the injuries clearly meet the criteria of an assessment finding greater than 10% or person impairment.
The claimant submits that the medical evidence demonstrates that she has sustained injury as a result of the subject accident and:
(a)   the past domestic care and assistance provided to date is causally related to the accident and has been necessary and reasonable;
(b)   she will require ongoing domestic care and assistance, and
(c)   she will require ongoing treatment.
The claimant also provided submissions in her application for assessment of WPI and treatment dispute.
The claimant submits that it is unclear how the insurer has concluded that the claimant’s long-standing history of more than 10 years of lower back and neck pain causes her significant restrictions and disabilities in her daily activities to such an extent that any need for care and/or treatment is due to her pre-existing pain symptoms. The claimant says that the evidence shows that despite any previous health conditions, the claimant retained her independence and was performing domestic duties without assistance.
The claimant does not deny that she previously suffered from other pre-existing health conditions. However, the claimant submits that these conditions only impacted her intermittently at the time of the accident. It is the claimant’s submission that at the time of the accident, her physical pains did not impact her ability to engage in activities of daily living. The claimant submits that had the accident not occurred, then her pre-existing pain symptoms would not have impacted treatment and care needs.

The claimant submits that there is no evidence relied upon by the insurer that suggests that immediately before the accident, the claimant required treatment/care as a result of a pre-existing health conditions.
The claimant relies on a report of Dr Tong where he said that symptoms complained of, post-accident, had been present for more than two years and are likely to persist into the foreseeable future.
The claimant submits that Dr Tong said that her prognosis was guarded due to the chronicity of symptoms and that the claimant will continue to be limited in her ability to engage in her usual activities. Dr Tong said that with regard to the claimant’s future needs she would continue to require treatment consisting of core stability exercises, counselling and pain management. Dr Tong also noted, in the submissions of the claimant, that her functional disabilities are now more restricted, and she would require assistance with her activities of daily living in the foreseeable future.
The claimant submits that Dr Tong acknowledged that her future treatment and care needs are directly related to the accident and were reasonable and necessary in the circumstances.
The claimant submits that the clinical records of her GP, Dr Barich, do not indicate proximal treatment because of pre-existing health conditions.
The claimant submitted that because of the injuries and disabilities she suffered in the accident, she has had difficulty performing her duties and has relied heavily on her family members and has received gratuitous domestic assistance at a rate of about seven hours per week since the accident. The claimant claims gratuitous assistance from the date of the accident rate of seven hours per week.
Regarding the future, the claimant submits that based on her current circumstances, assistance received to date and ongoing disabilities, then it would be reasonable to assume that she will require domestic assistance in the future at a rate of about four hours per week on a commercial basis for heavier household chores and home maintenance activities.
The claimant submits that the need for treatment and care is causally related to the accident and is reasonable and necessary in the circumstances. The claimant further submits that in the event the panel finds that the claimant had a pre-existing condition that impacted her activities of daily living, and her treatment needs, then the accident aggravated these injuries and increased the need for future care/assistance and treatment.

The insurers submissions

The insurer submits that the claims for past gratuitous assistance, future commercial care and future treatment are not causally related to the accident nor reasonable or necessary.
The insurer generally submits that the claimant had significant pre-existing health issues which had rendered her permanently unfit for work and that she had a long-standing history of more than 10 years of lower back and neck pain which caused her significant restrictions and disabilities in her daily activities.
The insurer submits that any ongoing symptoms and restrictions experienced by the claimant are entirely due to her pre-existing pain symptoms and physical abuse.
The insurer says that the claimant would have required ongoing assistance with domestic duties as well as regular treatment by her GP and other physical therapy due to her pre-existing health issues.
The insurer submits that in any event, such treatment is not necessary for soft tissue injuries which have already resolved.

Medical Reports

Medical Assessor Truskett provided a certificate for the Medical Assessment Service dated 10 June 2021. He assessed the claimant’s neck, thoracic spine, lumbar spine, left ninth and 10th ribs, right shoulder, right upper extremity, right elbow, left shoulder, left upper extremity, left elbow, right lower extremity – knee, left lower extremity – knee, left lower extremity – leg.
The claimant reported that she had a previous history of back pain but no symptoms from other body parts assessed.
The claimant was reported to have first attended her GP approximately seven days post-accident.
The claimant reported that she had not had pain in her chest wall two years prior to the examination. The claimant said pain in her right elbow resolved three months after the accident. This was the same for the left elbow.
The claimant informed the Medical Assessor that at the time of examination she was experiencing pain at a level of 8/10 most of her body parts. The Medical Assessor commented that the claimant did not have the outward appearance of a woman in such severe pain.
Observations were reported on about the Westmead Hospital notes and that the claimant was moving stiffly and slowly. Joints of the upper and lower limb were normal on examination except for some tightness and discomfort at the extremes of movement. There was some reduced neck movement with normal sensation of the upper limbs. The claimant was discharged after the assessment.
A SPECT-CT of 12 April 2017 was commented upon in the report of discovertebral degenerative change at C4/C5, C5 and C6 levels.
Regarding causation, the Medical Assessor merely said that based on history, documentation reviewed and physical examination, there was no causation for the injuries examined. He drew the same conclusion with respect to treatment and care. No reasons were provided to support this conclusion.
The Panel notes that in the Medical Assessors WPI assessment of the claimant he found that the claimant sustained soft tissue injuries to her neck, thoracic spine, an aggravation of a pre-existing lumbar spine injury and possible fracture of the right and 10^th ribs as well as soft tissue injuries of her right shoulder, left shoulder, right elbow, left elbow, right knee and left knee were causally related to the accident but provided no substantial information about this conclusion.
In the reasons and certificate of the Medical Assessor going to the provision of treatment and care, the Medical Assessor found that the claimant’s treatment and care needs are not reasonable and necessary in the circumstances as they did not relate to injuries caused by the accident. These findings appear inconsistent.
Clinical records of Dr Barich note a first consultation on 30 March 2017 following accident on 25 March 2017. The claimant complained of pain in her neck and with stiffness, right elbow pain, right knee pain more than left knee pain, headaches and dizziness.
The claimant obtained a medical certificate from Dr Barich, dated 30 March 2017 and annexed this to the personal injury claim form. The injuries said to arise out of the accident were listed as;
(a)   neck pain and stiffness;
(b)   right elbow pain;
(c)   knees pain (right worse than left);
(d)   headaches, and
(e)   dizziness.
On 6 April 2017 she complained of neck pain and stiffness with pain radiating to the shoulders in the right loin area.
A consultation on 17 May 2017 noted another car accident on 27 April 2017 and a reference to neck pain. A consultation on 6 July 2017 referred to neck pain and stiffness with pain radiating to shoulders. This was related to the accident of 17 March 2017. On 27 July 2017 the claimant complained of neck pain with some stiffness.
The claimant had various other consultations with her GP but it was not until 18 July 2018 that back pain was recorded, amongst other things.
Dr Barich provided a report of 28 August 2017 confirming treatment and complaints to that time. The doctor said that the claimant would benefit with physiotherapy medication and counselling.
The next recorded entry regarding physical disabilities was on 4 February 2019 with a complaint of neck pain for the last week. The claimant was reported to have tight neck muscles and a slight decrease in range of movement in the neck.
A GP management plan reviewed on 4 May 2019 referred to goals of improving compliance with medications, improving general health, improving knowledge of condition, losing weight, maintaining function and preventing complications of diabetes. There was no reference to any physical disability.
A report of Mr Hurter dated 27 May 2017 noted the claimant was complaining of general all-round pain from a chronic history of pain and abuse. He said that the claimant had an abusive ex-husband and children, she had been previously beaten by her husband and son, a recent car accident was noted as having aggravated symptoms and the claimant was feeling unable to move and function daily without experiencing variable levels of pain. Complaints of lower back neck and shoulder pain were said to have been made since March 2017. The recent car accident, presumably March 2017, was said to have made daily activities unbearable due to pain however, the Panel notes a second car accident in April 2017 and so it is unclear to which accident this practitioner is referring.
Mr Hurter reported that the claimant had undergone physiotherapy treatment but she had no change in pain and felt that nothing was being done.
The practitioner recorded that the claimant felt like his treatment was working. He reported that he had discussed the initial complaint of injury was as a result of “the accident” (which accident is not defined) and believed that they were no longer an issue. It was reported that all adjustments went without much resistance although there was still muscle spasm along her neck and back, but Mr Hurter did not believe this was as a result of the accident. He believed that what remained was as a result of poor muscle balance and posture.
When Mr Hurter first saw the claimant, she provided a history of having suffered neck pain the previous 10 years with a 5 to 7/10 severity for 100% every day. She also complained of upper and lower back pain every day. It was recorded that she had this for the last seven years. The only injury attributed to the accident on 25 March 2017 were fractured ribs on the right side. This record was dated 27 May 2017.
There is a record from the medical practice that the claimant had no further consultations since October 2018.
On 18 July 2018 the claimant listed symptoms of which there was only one physical complaint, and this was of back pain.
The claimant obtained a medico-legal report from Dr Tong dated 5 August 2019.
Dr Tong referred to a past medical history of neck pain in October 2015 and back pain from an L5/S1 disc bulge dated July 2016. The claimant informed Dr Tong that these pains had affected her only intermittently.
Dr Tong reported that the claimant continued to have neck pain with referral into the shoulders, and lower back without referral. On the visual analogue scale, the pain might range from 6/10 - 8/10. There may be intermittent finger paraesthesia. Ms Isaac has difficulty falling asleep because of this pain.
It was reported that the claimant was single and lived then with her son (aged 36-years-old) in a unit. From a functional point of view, it was said that the claimant could perform self-caring duties, and could manage cooking, superficial cleaning, but was said to be unable to manage deeper cleaning such as vacuuming, mopping or deep cleaning. These tasks were said to be now done by her sister. It was reported that her sister would come to help her once or twice a week.
Dr Tong said that because of the accident the claimant has chronic neck and low back pain. In addition, there were still radicular symptoms, in the shoulders. The claimant was said to have difficulty sitting, standing or walking for long periods, lifting items weighing more than 5kg or bending. The symptoms were said to have been present for more than two years, and likely to persist in the foreseeable future.
Dr Tong said that the claimant’s disabilities were causally related to the accident of March 2017. She gave no reasons for this conclusion.
The visual analogue pain scale referred to by Dr Tong and Mr Hurter are with the same scales of pain which the claimant referred to pre-accident. Dr Tong did not consider the extent of the claimant’s pre-existing disabilities and aggravation/ongoing disabilities after the accident of March 2017.
The insurer obtained a report from Dr Keller dated 20 May 2019.
The report noted that the claimant said that she had been on a disability support pension for more than 10 years and had been deemed totally unfit for work on physical grounds. She said that she had been suffering low back pain since around 2000 and diagnosed with two disc bulges in her lumbar spine.
The claimant reported that she continued to take Panadol for her symptoms which she was taking for lower back pain prior to the accident.
Dr Keller examined the claimant’s range of motion in the cervical spine without spasm or signs of radiculopathy. He found a full symmetrical range of motion in the lumbar spine without spasm or signs of radiculopathy. No abnormalities were detected in the shoulders, elbows or lower limbs.
Dr Keller referred to the ambulance report and the note that the claimant complained of pain in her right elbow, right thigh and knee and said that her neck was normal. He referred to Westmead Hospital emergency department notes of 25 March 2017 which noted the claimant reporting pain in the right elbow, both knees and her neck. There was reference to low back pain but only with respect to a past history of this. An X-ray was only undertaken of the right elbow.
Dr Keller said that the diagnosis was one of possible soft tissue injuries to the cervical spine, right elbow and knees which had resolved. He said that the claimant was involved in a low force accident and this was unlikely to have caused lasting musculoskeletal injuries.
Dr Keller said that there was no evidence that the claimant had any future treatment needs attributable to the accident

Causation
The Motor Accident Guidelines

The Motor Accident Guidelines identifies the test for causation at clauses 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the (American Medical Association) AMA 4 Guides
Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 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.”

The Civil Liability Act (the CLA)

As mandated by Justice Campbell in Owen, s 5D of the CLA needs to also be considered when assessing causation.
Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
There are two elements to address when assessing causation under s 5D(1):
(a) “Factual causation”,[2] and
(b) “Scope of liability”.[3]
[2] See s 5D(1)(a) of the CLA – this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[3] See s 5D(1)(b) of the CLA. See Adeels Palace at [42]; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing “factual causation” and “scope of liability” involves the making of value judgments.[4]
[4] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^.
Dr Keller reported a low-speed accident but there is no other information about this.
According to the ambulance report, no airbags were deployed.
When the claimant first attended the Emergency Department of Westmead Hospital, she complained of pain in her right elbow, both knees and her neck. Any reference to low back pain was with respect to a past history of this. Investigations only concerned an X-ray of the right elbow and no other body area.
When the claimant was attended by ambulance officers, it was noted in the ambulance report that she complained of pain in her right elbow, right thigh and knee and said that her neck was normal.
When Dr Barich completed the personal injury claim form on 30 March 2017 he listed the claimant’s injuries as follows:
(a)   neck pain and stiffness;
(b)   right elbow pain;
(c)   knee pain – right was the left;
(d)   headaches, and
(e)   dizziness.
When the claimant saw her GP again on 6 April 2017 she only complained of neck pain and stiffness with pain radiating to the shoulders.
Consultation on 17 May 2017 noted another car accident on 27 April 2017 and a reference to neck pain. Another consultation on 6 July 2017 referred to neck pain and stiffness with pain radiating to the shoulders. This was specifically related to the accident of 17 March 2017. Next consultation concerning accident complaints was on 27 July 2017 and the claimant complained of neck pain some stiffness.
It was not until 18 July 2018 that any complaint of back pain was recorded. The Panel does not consider that complaint as being proximate to the accident, 16 months later.
Thereafter, the next recording of complaints regarding physical disabilities occurred on 4 February 2019 and is with respect to a complaint of neck pain for the previous week when it was reported that she complained of tight neck muscles and with a slight decrease in range of movement in the neck.
The GP management plan for May 2019 made no reference to any physical disability.
Treatment by the claimant’s chiropractor, Mr Hurter, is noted in his report of 27 May 2017.
He referred to the claimant having general all round pain from a chronic history of pain and abuse. Mr Hurter provided a confusing complaint history where, following that heading of “Complaint History”, reports “since Christmas of 2016 (5 months). lower back, neck and shoulder pain since March of 2017”. It is unclear whether this is a reference to complaints since Christmas 2016 or the accident of March 2017.
The claimant informed Mr Hurter that she had a history of suffering lower back and neck pain the previous 10 years with a 5 to 7/10 severity 100% every day. She also complained of upper and lower back pain every day. This pain had been recorded as having lasted for the last seven years. The only injury attributed the accident on 25 March 2017 is a record of fractured ribs on the right side, as recorded on 27 May 2017. It was recorded that she had broken her ribs on the left side around Christmas 2016.
The claimant has been the recipient of the disability pension apparently for approximately 10 years, according to information provided to Dr Keller. She informed him that she had been suffering low back pain since around 2000 and had been diagnosed with two disc bulges in her lumbar spine.
The claimant says that her injuries became worse after the accident however, the Panel is of the finding that this is inconsistent with the medical evidence.

The claimant has had limited medical treatment concerning her accident-related injuries. She had considerable physical disabilities sufficient to be granted a disability support pension. The claimant has had back problems since around 2000.
Imaging from around 2000 and before the accident has been reported to show the presence of bulging discs. These appearances are common in people without symptoms.
It is apparent to the Panel that the claimant has only complained of a neck injury since the accident and not a lower back injury as well. No complaint was made about back pain until 18 July 2018, a period of almost 16 months since the accident.
Whilst the claimant was in receipt of a disability pension for more than 10 years prior to the accident, she says that it was only following the accident she needed her sister to come to her home to assist her, which was not the situation pre-accident. However, the Panel finds that any need can only be attributed to the neck injury, and given the reporting of Mr Hurter, there are other factors also contributing to this need.
The Panel must consider whether the accident caused or contributed to her impairment and also whether the accident caused or contributed to worsening of her impairment.
Considering the claimant was not complaining about her back until July 2018, the Panel is not satisfied that the accident caused or contributed to this disability.
Regarding the claimant’s neck, when she was first attended by ambulance officers after that accident, on her examination, her neck was reported as normal. On arrival at Westmead Hospital though, she did report pain to her neck. The Medical Assessor’s conclusions with respect to his WPI assessment and treatment and care assessment are inconsistent. In the WPI assessment the Medical Assessor found that the claimant’s injuries were causally related to the accident. In the treatment and care assessment the Medical Assessor found that the need for these is not causally related to the accident.
It is the panel’s assessment that is not bound by the finding of the Medical Assessor with respect to causation of the claimant’s injuries in the WPI assessment. The Panel is only considering the need for care and treatment arising from the accident and whether that is causally related to the accident.
The Panel finds that the claimant suffered a soft tissue injury to her neck as a consequence of the accident.
The Panel finds that the claimant has not injured her low back as a consequence of the accident.

The claimant was examined by Medical Assessor Rebbeck. Her report and findings follow.
An interpreter was present Zahraa Mourtada (ID CPNOHS841) at the time of examination.
The following is the History that Ms Issac gave, interpreted by Ms Mourtada.

“History

1.   Pre-accident medical history and relevant personal details
Ms Isaac stated that she lives at home on her own, having divorced her husband years ago. She has three adult children aged 26, 37 and 38. At times her adult children stay with her. Ms Isaac is originally from Iraq and migrated to Australia in 1992. Ms Isaac did not work prior to the subject accident, she stated her usual activities are to do the cooking and cleaning and shopping. In addition, she looks after her young grandson at times who is four years of age.
Ms Issac told me she has a past history of intermittent back pain. She denied that this stopped her doing anything and stated she was independent in daily activities prior to the subject accident.
It is evident from documentation produced by the parties that the claimant was previously assaulted by her son (with schizophrenia) approximately 3 months prior to the accident sustaining lower rib fractures and a nose fracture. She is currently in protected accommodation due to this. She did not volunteer this information at the time of the examination.
2.   History of the motor accident
Ms Isaac told me that she was involved in a motor vehicle accident on 25 March 2017. She stated that she was stationary waiting to turn right when a vehicle collided with hers, with the impact taken on the front/ left-hand side. As she recounted this, she said it was as if she was ‘in a movie’. She felt so scared and felt that her life was in danger. She recalled being shocked after the accident. She was given oxygen at the scene. Her sister then came to the scene and accompanied her to Westmead Hospital.
3.   History of symptoms and treatment following the motor accident
Emergency
Ms Isaac said that she was assessed in the emergency department at Westmead Hospital. She stated that she was given scans, and these cleared her of any serious injury. She was discharged that same day. At the time she recalled the symptoms as pain in her neck, arms and legs and felt that she was tensing her body .
General practitioner
Ms Isaac said that she initially attended her General Practitioner. She recalled that she was prescribed medications including Voltaren, and Panamax, and was also advised to provide Deep Heat and hot packs to reduce her pain. She recalled that the GP also sent her for a CT scan of the cervical spine. She stated that the GP recommended she see a specialist however she did not undertake this recommendation, as she said the insurer would not pay for this.
Physiotherapy
Ms Isaac said she was referred to physiotherapy and she attended this approximately one week after the accident. She recalled that she was provided with five sessions of physiotherapy under the Enhanced Primary Care Plan through Medicare. She stated that this treatment consisted of massage, traction and simple exercises. When asked about the effect of this treatment she said that it would help her for one to two days and then symptoms would return.
Ms Isaac said that she received these five sessions of physiotherapy every year. I clarified this with her, and she was consistent with the explanation being that because the Enhanced Primary Care Plan only funds five sessions of physiotherapy per year, she therefore undertook this treatment, as I understand, in 2018, 2019, 2020 and 2021. That would mean she has had five sessions of physiotherapy per year for the past five years.
Chiropractic
Ms Isaac said she has had nine sessions of chiropractic paid for by the insurer. She stated that she attended chiropractic because her physiotherapy ran out. She stated that she attended once per fortnight for these nine sessions. Chiropractic care stopped in 2018. When asked about the effect of this she stated that it gave her short term relief.
Psychology
Ms Isaac has also attended a psychologist. I asked her whether the psychologist had given her a diagnosis however, she could not recall whether a specific diagnosis was provided. She stated that the reason she sees a psychologist is that she is anxious at night, and that the psychologist helps her with this anxiety. The Panel could not find any reports from the treating psychologist in the documentation to confiirm or deny this.
4.   Details of any relevant injuries or conditions sustained since the motor accident
Ms Isaac denies any significant injuries or conditions sustained since the motor accident.
5.   Current symptoms
Ms Isaac completed a body chart which indicates where her current symptoms are. This has been a scanned and placed in the figure below. She described her current symptoms as follows:
·Posterior neck and shoulder pain, described as very tense and constant, intensity 8/10
·Bilateral intermittent arm/ elbow pain described as constant. This is related to the neck pain in that when the neck pain increases the elbow pain occurs
·Lower back pain described as constant, intensity 8/10
·Bilateral leg pain described as intermittent but high intensity.
·Intermittent pins and needles in the palms of her hands at night.
[IMAGE UNABLE TO RENDER]

Current function
Ms Isaac stated that before the accident she could manage all the cleaning and cooking. However, since the accident, she can only manage the cooking. She asked her friend to come in and do the cleaning and feels that she is unable to do this due to the pain. She said her goals however, are to go back to living an independent life and that would mean for her that she can clean the house herself, travel without help and be able to manage the shopping.
When I asked her what the barriers were to travel at the moment, she stated that she feels she needs someone to come with her to feel safe. She feels unsafe without help.
Questionnaires and beliefs
Ms Isaac completed the following questionnaires after the examination.
· These included the Pain Self Efficacy questionnaire. She scored 11/60. This indicates low self efficacy (or low confidence to self-manage symptoms)
· The Orebro Musculoskeletal Pain Screening Questionnaire. She scored 69/100. This indicates a moderate risk of poor outcome. Of note she scored more than 5/10 on the following items
oitem 2-pain intensity 8/10
oitem 7- risk of persistent pain- score 8/10
oitem 8- chance of resuming normal activities- score 10/10, indicating she does not feel confident she will be working her normal duties in three months
oitem 9- beliefs about pain – score 7/10, indicating pain means she should stop what she is doing until pain decreases
oitem 10- beliefs about work- score 8/10 which means that she should not work with the current pain.

· Depression Anxiety and Stress Scale. She scored –
o6/21 for depression (mild)
o6/21 for anxiety (moderate)
o7/21 for stress (normal).

· Central Sensitization Inventory. She scored 74/100. This indicates that central sensitization mechanisms are likely present.
I asked Ms Isaac what she thought was causing her pain. She stated she had no understanding of why her pain persisted nor what might be the cause of her pain at this point. I then asked her what she felt needed to happen for her to achieve her current goals of being independent. She stated that she felt the pain needed to be gone or significantly reduced. I asked her what she felt was necessary to reduce the pain. She felt that she had not had sufficient physical therapy to help reduce the pain and improve her function.
I asked her, to help resolve this dispute, what she felt she needed as far as domestic assistance was concerned and for how long she felt she needed it. She answered that she felt that if she had the right treatment she would only need domestic assistance for a further six months and then work towards independently managing domestic duties herself.
Imaging brought to the assessment
· Ultrasound of bilateral shoulders dated 12 July 2022. This indicated:
oRight shoulder - no rotator cuff tear but mild subacromial bursitis.
oLeft shoulder - Subscapularis tendinosis. Partial thickness supraspinatus tendon tear and subacromial bursitis.

· Cervical spine CT dated 12 July 2022. Conclusion reads - Moderate cervical spondylosis. Canal stenoses, greatest at the C5/6 level. Bony foraminal stenosis, greatest at both the C6 nerve root exit canals on the left C5 nerve root canal, there is potential for nerve root compromise.
6. Current and proposed treatment
The current and proposed treatment to be considered in this assessment are listed below. In summary proposed treatment includes medical treatment, physical treatment, pain management, surgical treatment, and radiological investigations.

Clinical Examination

7.   General presentation
Ms Isaac presented in a consistent manner. There were no inconsistent mannerisms or inconsistent behaviour.
8.   Cervical spine (cervicothoracic)
There was full range of cervical motion. There was some pain noted at end range flexion and extension. There was generalised tenderness to palpation.
Cervical range of motion was measured with an inclinometer and is listed below.

Cervical movement Active Range Comments

Flexion 60° normal range of motion for age, pain in range

Extension 30° normal range of motion for age

Left lateral flexion (side bending) 25° normal range of motion for age

Right lateral flexion (side bending) 25° normal range of motion for age

Left rotation 70° normal range of motion for age

Right rotation 70° normal range of motion for age
9.   Thoracic spine
There was normal range of motion for the thoracic spine, including normal range of flexion, extension, and rotation. There was no tenderness to palpation over the lower ribs. .
10.        Lumbar spine (lumbosacral)
There was normal range of motion for the lumbosacral spine, this included normal range for flexion, extension, and lateral flexion. There was some slight muscle guarding during lumbar flexion, however she was able to reach normal range (hands to below knees).
11.        Shoulder
There was normal active range of motion for the shoulder. Specifically, there was normal range of flexion, and abduction. However, there was some pain with abduction of the shoulder bilaterally between 90-120 degrees. This is sometimes described as a painful arc.

Shoulder Movements
Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

170°

170°

Extension 50° 50°

Adduction 50° 50°

Abduction 170° 170°

Internal Rotation 90° 90°

External Rotation 90° 90°
Further testing of the shoulder revealed full passive range of motion when tested supine. This is undertaken carefully when the patient was supine. This information would suggest that there is no joint injury to the shoulder.
The Hawkins Kennedy and O’Brien’s tests were positive.
Resisted static contractions of the shoulder external rotators, internal rotators, flexors and extensors were considered normal in strength, though produced some pain.
12.        Arm and elbow
There was full range of elbow motion, with no complaint of pain.

Elbow Movements
Active ROM Measured

RIGHT
Active ROM Measured
LEFT

Flexion

140°

140°

Extension 0° 0°

Pronation 80° 80°

Supination 80° 80°
There was noted pain in the arm. This was referred from the cervical spine. This observation is based on the pain sensitivity findings. Specifically, there was pressure hyperalgesia and cold hyperalgesia demonstrated in the bilateral upper limbs.
13.         Knee and leg
There was full range of motion of the knee.

Knee Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120°	120°
Extension	0°	0°

There was some pain reported in the patella-femoral regions during a squat. Clinical tests for ligamentous instability were normal (eg normal medial and lateral ligament stress tests, normal Lachman’s test for the anterior cruciate ligament).
There was reported pain into the leg. This , is referred from the lumbar spine. This observation is based on the pain sensitivity felt in the lower limbs. Specifically, this was pressure hyperalgesia and cold hyperalgesia that was non dermatomal but widespread.
14.        Neurological assessment.
A neurological assessment was undertaken for both the lower and upper limbs.
·        Lower limb neurological examination. There were normal reflexes, normal dermatomal sensation, and normal myotomal strength exhibited.
·        Upper limb neurological examination. There were normal reflexes, normal dermatomal sensation, and normal myotomal strength.
There was some pain reported during muscle testing of the myotomal strength. I undertook this examination very carefully to minimise symptom exacerbation. Hence, pain may have reduced the ability for Ms Isaac to resist the muscle tests fully. Hence, mild weakness was observed, however this was not myotomal in nature but was consistent across all muscles tested. This would indicate that the weakness was unlikely to be due to nerve injury but was more likely due to pain. The presence of pain alone does not justify the provision of domestic assistance.
There was no observed muscle wasting in the upper or lower limbs.
15.        Pain sensitivity assessment
There was widespread mechanical or pressure hyperalgesia. That is, light pressure was reported as painful when tested over both upper and lower limbs.
There was clinical evidence of widespread cold hyperalgesia. That is, when ice was placed on the upper limbs and lower limbs, this was reported as painful rather than just cold. This clinical test highly correlates with quantitative sensory testing measures.
Comments on consistency
Ms Isaac presented in a consistent manner, with no obvious illness behaviour. She was able to perform all of the active movements consistently. There was pain during movement and reported pain during the testing. However, every attempt was made to minimise the discomfort to obtain the information required for this assessment. By way of observation, while the claimant was pain limited she had normal range of motion.
OPINON on DIAGNOSIS
With respect to the cervical and upper limb symptoms, the diagnoses are consistent with Whiplash Associated Disorder Grade 1 or DRE Cervico-thoracic Category 1.
The Panel makes this decision based on the fact that there was full range of motion demonstrated in the cervical spine that was considered normal age-related range of motion. There was no evidence of muscular guarding. There was no evidence of neurological impairment or radiculopathy. There was however reported pain and tenderness. According to whiplash guidelines the Quebec task force classification should be used. This presentation is consistent with WAD I.
Using the AMA4, the most appropriate classification is DRE cervicothoracic category one, where there are complaints or symptoms but no significant impairment in terms of range of motion loss or neurological impairment.
In relation to the upper limb symptoms, in the Panel’s opinion these symptoms are referred from the cervical spine. This opinion is based on the patient self-report that when the neck pain worsens so does the shoulder symptoms and the elbow/arm symptoms. This is also made on the observation in this assessment, that there was no significant active or passive range of motion loss in the shoulder nor in the elbow. This would suggest there is no specific injury to the shoulder or elbow. Further there is full isometric strength of the shoulder when tested with resisted isometric testing, and the same was exhibited with the elbow resisted exercise tests. This again suggests that there is no specific injury to the shoulder or elbow muscles.
The Panel notes that there is radiological evidence of subacromial bursitis and or partial thickness supraspinatus tear. These ultrasound findings may also explain the painful arc of the shoulder during shoulder abduction. In considering this, there may be some concurrent subacromial bursitis that is symptomatic in this person. In this instance, the sub-acromial bursitis is not resulting in an impairment of joint motion.
Thoracic spine pain
The diagnosis is consistent with DRE thoraco-lumbar Category 1- complaints or symptoms.
The Panel’s opinion is based on the fact that there was normal range of motion exhibited in the thoracic spine during testing, no observed muscle guarding, and no neurological impairment.
Lumbar spine and lower limbs.
Similar to the cervical spine and upper limbs, the diagnosis here is consistent with nonspecific low back pain or low back pain with a musculoskeletal origin. Using the AMA 4, this would be consistent with DRE lumbosacral spine category one, where there are complaints or symptoms. This diagnosis is based on the fact that there was no loss of range of motion. Once again there was some pain reported during range of motion testing, however there was no obvious movement impairment and no neurological impairment.
The posterior lower limb symptoms are referred from the lumbar spine, this is a common presentation with low back pain. This is based on the fact that the claimant self-reported that as low back pain increases the posterior lower limb symptoms increase. However, this disability is not causally related to the accident.

With respect to the anterior knee pain, the claimant reports knee pain, however there is full range of motion which would suggest there is no permanent impairment in relation to the knee (tibio-femoral) joint. There is however pain when she attempts squat in the region of the patella-femoral joint. This observation is more consistent with patella-femoral pain syndrome than any other diagnosis. However, again, the anterior knee pain is not causally related to the accident.
Chronic Pain
To assist the parties here to explain why there is significant levels of pain, there is evidence of chronic pain or central sensitization present. I base my opinion on:
·        The widespread nature of the pain reported that is not consistent with there being any specific joint injury.
·        The central sensitization inventory is 74/100, a score that is consistent with abnormal sensory processing or central sensitization.
·        Clinically there is evidence of both pressure hyperalgesia and cold hyperalgesia which is understood to be a feature of chronic pain and or central sensitization.
·        Chronic pain and central sensitization commonly arises after motor vehicle accidents in particular Whiplash Associated Disorder.
·        This observation is also consistent with that reported by the treating clinicians.
The disputes are now considered.
Conclusions are based on the claimant’s self-report, the observations in the assessment today, and in reading the documentation provided to the panel. In this instance, the claimant has stated that she has required domestic assistance due to the pain levels that prevent her from undertaking cleaning duties in her home. The domestic assistance has been provided in that her friend has assisted her with these duties.
As stated, the diagnosis here is chronic (musculoskeletal) pain that has arisen from the circumstances of this accident (stress and fear at the time of the accident and the past trauma) increase the likelihood that chronic pain or central sensitization may arise. Without adequate explanation of this to the claimant, people often become distressed or concerned about the level of pain thinking they may be doing damage and there is a diagnosis missed. Due to this, in turn their ability to participate in or conduct daily activities becomes reduced. This is indeed the pattern that this claimant has reported and is consistent with that reported in the documentation.
For this reason, she has then sought domestic help to undertake the duties in at home.
However, it is the assessment of the Panel that if the claimant does undertake appropriate pain management or physiotherapy treatment, she will improve her functional capacity to be able to undertake domestic duties in the future. This opinion is based on the fact that the claimant by herself reportedly has a goal to achieve this. Specifically, her goal is to achieve independent ability to manage or clean her house within six months, assuming she is provided with the appropriate treatment in that time frame.
Hence domestic assistance for remainder of her life in the opinion of the Panel is not reasonable and necessary.
Treatments:-
Treatment Type: Domestic assistance - causation
Treatment Description: Whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessors assessment is causally related to the injury sustained in the subject accident.
-YES, regarding the neck only
Treatment Type: Domestic assistance - reasonable and necessary
Treatment Description: Whether 0-7 hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessors assessment is reasonable and necessary in relation to the injury sustained in the subject accident.
-YES, regarding the neck only but limited to 2 hours per week. The claimant has suffered from neck pain with the severity of 5 to 7/10 every day for the previous 10 years before the accident. Examination the claimant had normal range of motion of her cervical spine for a person of her age. The claimant lives in a home with three other adults. The actual need for domestic assistance specifically referable to the claimant and not those of the other three occupants in the household is estimated by the Panel not to exceed two hours per week.
Treatment Type: Domestic assistance - causation
Treatment Description: Whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessors assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident.
-No. The claimant has other physical disabilities in addition to pain in her cervical spine. The Panel is not satisfied that the claimant’s needs in the future have been made worse by the accident.
Treatment Type: Domestic assistance - reasonable and necessary
Treatment Description: Whether 0-4 hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessors assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained in the subject accident.
-No. For the reasons previously given, the Panel is not satisfied that any need for this is causally related to the accident.
Treatment Type: GP consultations
Treatment Description: Whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
No
Type: GP consultations
Treatment Description: Whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
Some but limited GP consultations are causally related to the motor accident but not reasonable and necessary. The claimant has been on a disability support pension for in excess of 10 years. She would be consulting her GP in any event. Such consultations arising out of the accident are not likely to assist with management of the injuries.
Treatment Type: Medical - over the counter
Treatment Description: Whether any ongoing analgesic mediation in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
Treatment Type: Medical - over the counter
Treatment Description: Whether any ongoing analgesic medication in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
This is not reasonable and necessary. These medications are not likely to assist with management of the persistent pain.
Treatment Type: Medical specialist consultation
Treatment Description: Whether any Orthopaedic Surgeon consultations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
-No
Treatment Type: Medical specialist consultation
Treatment Description: Whether any Orthopaedic Surgeon consultations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
-No
No orthopaedic consultations are required nor would be reasonable or necessary in relation to the subject accident. The diagnosis is chronic (widespread) musculoskeletal pain. The applied DRE category to the cervical spine is essentially a musculoskeletal diagnosis. There is no clinical evidence of radiculopathy. It is likely that orthopaedic surgery is only required when there is a joint injury that could benefit from surgery, or radiculopathy that could benefit from decompression. In this instance, given neither of these are present, orthopaedic consultations are not reasonable and necessary.
Treatment Description: Whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
In the Panel’s opinion the physiotherapy treatment is causally related to the injuries sustained in the accident. The physiotherapy management (advice and exercise) should be aimed at improving the understanding of why and how chronic musculoskeletal pain arises after road traffic injury.
Treatment Type: Physiotherapy treatment
Treatment Description: Whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
Treatment Type: Hydrotherapy
Treatment Description: Whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
Treatment Type: Hydrotherapy
Treatment Description: Whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
In the Panel’s opinion, ongoing physiotherapy every year is not reasonable and necessary in relation to the subject accident. However, it would be reasonable to provide the claimant with a final course of physiotherapy that is aimed at explaining why the pain is present and providing the claimant with self-management strategies to return to her usual activities. This type of physiotherapy is usually best provided by physiotherapist with expertise in musculoskeletal injuries and or expertise in chronic pain management. This treatment could be provided by a specialist physiotherapist or by physiotherapists working within a pain management programme.
It would be expected that these outcomes are reached within 10 sessions over around 6-12 months. That is, patients are initially seen weekly, and are explained it will take them through a sequential explanation of why pain is present, any sequential graded activity programme to help them get back to normal activity. The aim of this is to ensure people are confident to self-manage after the programme ends. Treatment then tapers to fortnightly and monthly as the person transitions to self-management.
The claimant herself also expressed a desire to go through this style of treatment, which has not been provided to date. Claimant also expressed a desire that ongoing treatment is not something that she requests nor wants. Ideally the aim is to return to normal activities without requiring ongoing treatment forever.
In relation to hydrotherapy, there is no requirement for hydrotherapy. The first reason for this is that hydrotherapy is not the claimants culturally accepted method of exercising. Further, the claimant herself as stated above, requested that physiotherapy would be her treatment of choice should she have the choice. Treatments provided by physiotherapists that are evidence based (advice and exercise) are the treatments recommended here. The evidence is derived from land-based exercise, rather than water based exercise. This is because it's necessary to have resistance for muscles to gain endurance or strength. Adequate resistance to achieve endurance or strength gains are unlikely to occur in a pool environment.
Treatment Type: Pain management program
Treatment Description: Whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
No
Treatment Type: Pain management program
Treatment Description: Whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
No
In the Panel’s opinion, a formal pain management programme is not reasonable and necessary. If the claimant is provided with reasonable and expert physiotherapy then reasonable treatment would have been provided. The pain management approach would duplicate the approach physiotherapy provides.
Treatment Type: Radiological investigations
Treatment Description: Whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident.
No
Treatment Type: Radiological investigations
Treatment Description: Whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident.
No
No further radiological investigations are required to establish the diagnosis nor to establish the prognosis. Radiological imaging taken to date included in the documentation as excluded any serious injury including fracture, and or any serious neurological injury. This is the benefit of radiology radiological investigations in the context spinal pain conditions. Further radiological investigations will not improve diagnostic accuracy.
All radiological investigations are also understood to have no relationship to pain. That is that both cervical and lumbar MRI findings are not related to pain. Hence, obtaining further imaging would not assist in prognosis. These recommendations are consistent with the literature, are consistent with clinical guidelines for both whiplash and low back pain.”

The Panel adopts the report and findings of Medical Assessor Rebbeck.

CONCLUSION

The Panel finds that the claimant suffered an injury to her neck and shoulders as a consequence of the accident.
The Panel finds that the claimant has not injured her low back as a consequence of the accident.
The Panel finds that the injuries to the claimant’s right elbow, right and left knees have resolved.
The Panel accepts that opinion of Dr Keller that the claimant was involved in a low force accident and which was unlikely to have caused lasting musculoskeletal injuries. Dr Tong said that the claimant has disabilities which are causally related to the accident however she has provided no reason for this.
The visual analogue pain scale is referred to by Dr Tong and Mr Hunter with the same scales of pain which the claimant referred to pre-accident. Dr Tong did not consider the extent of the claimants pre-existing disabilities and aggravation/ongoing disabilities after the accident of March 2017.
In the opinion of the Panel, if the claimant were to undertake physiotherapy course of 10 sessions over 6-12 months for training for self -management then this would assist her to return to normal duties.
The Medical Assessor has considered in a separate certificate, the assessment of the claimant’s non-economic loss. In that matter he concluded that the claimant’s injuries were caused by the accident however in the treatment dispute with which this Panel is concerned, the Medical Assessor said that there was no causation for the injuries. This Panel has found that there is a need for some treatment and care which is causally related to the accident but only to the extent of 2 hours per week from the date of the accident to the date of this assessment but nothing thereafter.

Determination

The Panel revokes the decision of Medical Assessor Truskett dated 21 June 2021.
The Panel determines that the claimant should undergo a course of 10 sessions of physiotherapy over 6-12 months.
The Panel determines that the claimant needed two hours of domestic assistance per week from the date of the accident to the date of this assessment but no assistance thereafter as a consequence of an injury to her cervical spine.
The Panel determines the following;
(a)   Domestic assistance – causation – whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is causally related to the injury sustained in the subject accident. Yes.
(b)   Domestic assistance – reasonable and necessary – whether 0-7 hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is reasonable and necessary in relation to the injury sustained in the subject. No, limited to 2 hours per week from date of accident to date of this certificate.
(c)   Domestic assistance – causation – whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident. No.
(d)   Domestic assistance – reasonable and necessary – whether 0-4 hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessors assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained. No.
(e)   GP consultations – whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No.
(f)    GP consultations – whether 0-6 consultations with a GP per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No.
(g)   Medical – over the counter – whether any ongoing analgesic mediation in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No.
(h)   Medical – over the counter – whether any ongoing analgesic medication in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No.
(i)    Medical specialist consultation – whether any orthopaedic surgeon consultations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No.
(j)    Medical specialist consultation – whether any orthopaedic surgeon consultations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No.
(k)   Physiotherapy treatment – whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. Yes, a need for limited physiotherapy is causally related to the accident.
(l)    Physiotherapy treatment – whether 0-10 physiotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. Yes, but limited to a course of 1-10 sessions of therapy over 6-12 months.
(m)     Hydrotherapy – whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No.
(n)   Hydrotherapy – whether 0-10 hydrotherapy sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No.
(o)   Pain management program – whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No.
(p)   Pain management program – whether any ongoing pain management treatment sessions per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No.
(q)   Radiological investigations – whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is causally related to the injury sustained in the subject accident. No.
(r)   Radiological investigations – whether any ongoing radiological investigations per year in relation to the physical injuries as proposed is reasonable and necessary in relation to the injury sustained in the subject accident. No.

Cervical movement	Active Range	Comments
Flexion	60°	normal range of motion for age, pain in range
Extension	30°	normal range of motion for age
Left lateral flexion (side bending)	25°	normal range of motion for age
Right lateral flexion (side bending)	25°	normal range of motion for age
Left rotation	70°	normal range of motion for age
Right rotation	70°	normal range of motion for age

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	170°	170°
Extension	50°	50°
Adduction	50°	50°
Abduction	170°	170°
Internal Rotation	90°	90°
External Rotation	90°	90°

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	140°
Extension	0°	0°
Pronation	80°	80°
Supination	80°	80°

[2023] NSWPICMP 676

15 December 2023