Mitchell v Insurance Australia Limited t/as NRMA
[2023] NSWPIC 380
•1 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
Citation: | Mitchell v Insurance Australia Limited t/as NRMA [2023] NSWPIC 380 | |
| Claimant: | Pauline Elizabeth Mitchell | |
| insurer: | Insurance Australia Limited t/as NRMA | |
| Member: | Shana Radnan | |
| DATE OF DECISION: | 1 August 2023 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages under section 94; 90-year-old; soft tissue injuries; cervical spine and right shoulder; no non-economic loss; subsequent falls, past and future care; past and future treatment; Held – damages assessed according with sub-sections 94(3) and 94(4). | |
| determinations made: | CERTIFICATE Issued under section 94 (5) of the Motor Accidents Compensation Act1999 Assessment of Claim for Damages made in accordance with s 94 of the Act
| |
STATEMENT OF REASONS
INTRODUCTION
On 12 March 2017, Pauline Mitchell (the claimant) was a passenger in a vehicle driven by her daughter Kevina when the car they were travelling in was struck by the insured’s as it travelled through a stop sign contrary to road rules. (hereinafter referred to as the motor vehicle accident).
The location of the motor vehicle accident was at the intersection of Putty Road and Kurmond Road, Wilberforce. At the time of the motor vehicle accident the claimant was aged 84 years.
She was taken to Nepean Hospital by ambulance and discharged two days later after imaging was performed and an assessment made of her injuries.
The insurer admitted liability in its s 81 Notice dated 1 December 2017. There is no allegation of contributory negligence.
An assessment conference by video-link took place on 27 June 2023. At the time of assessment the claimant is 90 years of age.
The claimant and her daughter Rahna Crowhurst were present and answered questions. After the evidence of witnesses, further oral submissions were by counsel for both parties.
The claimant in her statement dated 8 February 2022 at paragraph 14 contends she has sustained the following injuries in the motor vehicle accident:
(a) pain in ribs;
(b) musculoligamentous injury to sternum;
(c) bruising to chest wall;
(d) musculoligamentous injury to neck with shooting pains to my head (headaches);
(e) right shoulder injury, and
(f) emotional trauma.
The damages requiring assessment are limited to past and future treatment expenses and past and future care losses. Permanent impairment did not exceed the statutory threshold and damages for non-economic loss were not available based on the determination of Medical Assessor Cameron that whole person impairment relating to her injuries did not exceed the statutory threshold of 10%.
There following matters touch upon the assessment of damages:
(a) the claimant’s recollections;
(b) pre-motor vehicle accident medical history;
(c) the impact of a fall on 11 April 2017;
(d) the impact of a fall on 28 December 2019;
(e) the medical opinions relating to motor vehicle accident injuries, and
(f) the occupational therapist’s assessment of care needs.
The claimant’s recollections
The claimant was questioned at length by the insurer as to her memory of events both before the motor vehicle accident and between the motor vehicle accident in March 2017 and a fall on 17 April 2017.
The claimant was adamant that she was in very good health and could not recall any specific of problems in the period before the motor vehicle accident. She denied taking any medication for pain and had no recollection of events recorded in the general practitioner’s clinical notes.
The claimant was emphatic that there was nothing wrong with her before the motor vehicle accident and even if she was prescribed medication for pain, which at first instance she denied, then could not recall, responding “I cannot remember taking medications for pain”.
The claimant was adamant that she had only suffered a blackout after the motor vehicle accident and not before.
When pressed she conceded “if it is there it must be correct”.
The claimant was also presented with a history given to an occupational therapist in April 2017 and denied that she had the capacity to perform the tasks as noted in this report. Counsel for the claimant speculated that due to the proximity between the two incidents, the history provided could have been in reference to the period before the motor vehicle accident.
The only concession of medical conditions acknowledge by the claimant in which medication was taken was blood pressure and kidney issues.
When questioned as to treatment and the level of medication taken, the claimant denied taking Tramadol even where recorded in patient records and her evidence initially was that she was currently taking up to six tablets of Panadeine Forte daily. I note that in her records there is an entry at one point for Panadol Osteo, and on further questioning the claimant referred to “Panadol” and confirmed it was over the counter medication. Noting that Panadeine Forte requires a prescription, the evidence of taking Panadeine Forte is questionable.
In her statement dated 8 February 2022 she reported: “I reroofed my house at age 79 on my own”. The claimant repeated this history at the assessment conference stating when questioned on her pre-accident health, she responded: “I was even building, even taking roofs off the building and putting new building, new material on the roof. So I was very, very active with no problems whatsoever of any pain that stopped me from doing anything”.
Questioning on this history did not go further on this point.
The insurer took the claimant to various entries in the clinical records such as:
(a) the 1993 fall;
(b) the February 2017 fall;
(c) the April 2017 fall, and
(d) the November 2018 fall.
I formed the view that the claimant’s recollections are poor but due to her age, it is not an issue of credit.
Whilst the claimant has a genuine belief that all of her ongoing problems and her need for care are motor vehicle accident related, this view is not necessarily supported by the facts.
Pre-motor vehicle accident medical history:
Clinical records of Hawkesbury Hospital (document R9) confirmed a history of falls:
(a) On 8 January 1993 she attended hospital and the Nepean Hospital records note “fall from a horse at Bathurst. Claims to be doing 50km/hr- unlikely” ... complains of severe pain, dizziness and vomiting”.
(b) On 29 January 1993 in a fall the claimant sustained fracture of left rib. Her medical history included a Potts fracture (ankle fracture) from a horse riding incident. She remained hospitalised until 6 February 1993.
Review of medical notes established the claimant attended upon a number of general practitioners semi-regularly prior to the motor vehicle accident:
(a) Records of Dr George referred to the following:
(i)1993 a fall;
(ii)2006 diagnosis of cervical spondylitis;
(iii)2014 X-ray neck;
(iv)2012 reporting of right shoulder pain;
(v)2014 onwards complaints of back pain, and
(vi)2014 chronic renal failure.
(b) In the two years before the motor vehicle accident according to the records of Richmond Medical Centre she reported:
(i)lower limb oedema;
(ii)dizziness and nausea;
(iii)headaches;
(iv)falls;
(v)left hip pain, and
(vi)bilateral foot numbness.
(c) On 25 September 2015 – a referral for CT scan of brain was made due to persistent headaches caused by head injures consequent to several falls at the request of Dr Sinpurapura. At this time assisted living arrangement were recommended.
On 23 February 2017, the month before the motor vehicle accident the claimant was provided a referral for physiotherapy treatment relating to shoulder pain and back pain. A fall had occurred with resulting “severe pain in the right side of chest ribs” referral for an X-ray.
The impact of a fall on 11 April 2017
The claimant gave a history of presenting to Hawkesbury Hospital Emergency Department and then being transferred to Nepean Hospital (document R14).
The claimant’s statement at paragraph 25 reads “On 12 April 2017, I blacked out again and fell onto a candle stick holder at my daughter Kevina’s home. This was a similar episode to the one I had when in hospital immediately following the motor vehicle accident.”
This history differs significantly to the history provided to hospital staff at the time of admission by ambulance. The history given on this occasion as recorded in the ambulance notes and emergency department records was:
“… that she tripped on her dressing gown and fell on a candlestick causing injury to her cheek.”
The claimant now considers that the cause of this fall was a blacking or “greying out” and not a tripping on her dressing gown near a fireplace as recorded in the hospital notes.
The insurer submitted that the history provided contemporaneously should be accepted as the accurate description of the event and not the latter reconstruction by the claimant.
The claimant was staying with her daughter Kevina Pasa at the time of the motor vehicle accident and remained at her home till some six weeks post the April fall. Kevina did not provide a statement in the matter and was not called as a witness.
The claimant’s grand-daughter Jasmine Pasa was present during the assessment by Ms Wright, in hospital which commented on the information provided by Jasmine. There is no statement in this matter from Jasmine.
The claimant contends that the fall was due to a fainting spell and this was a motor vehicle accident injury.
The insurer submitted that reliance should be placed on the contemporaneous history that she tripped/slipped on her dressing gown as noted in both the ambulance and hospital records and the injuries sustained are unrelated to the motor vehicle accident.
Medical records – relating to the April 2017 fall
Four weeks after the subject accident the claimant fell into a fireplace on 11 April 2017 and was taken to Hawkesbury Hospital. Clinical records of St John of God Health Care were produced.
The Emergency Triage form notes “fall 2x body parts. Fall into fireplace on R chest/R cheek bruising Pain: R lateral chest worse on movt..morphine 7.5mg” (page 67 of claimant’s bundle).
She was placed in a collar but found it uncomfortable on her throat and so it was removed during the transportation to Nepean Hospital by ambulance.
Clinical records of Hawkesbury Hospital at p 75 of the claimant’s bundle records the following:
“11/4/17 …
HPI – fall onto fireplace including into candlestick (sharp object) this pm daughter’s house
- Candlestick injury to r cheek
- Mechanism: walking and slipped on dressing gown. High impact fall onto right torso.
- Distressed on falling, cried out for help
- -Active bleeding from lip at time of fall
- No LOC/ nausea + vomiting/ syncope/ headache/loss of vision
- APPT
Reports pain (severe) ..?inferior r ribs
.
PMHX HTN. 7 years ago
- 12/3/17 T-bone MVA
- 2 days Nepean Hospital ?fracture sternum
- Outcome: no fracture”
The recollection of the cause of the fall given by the claimant at the assessment conference is contrary to the history of presenting illness as noted above wherein the denied loss of consciousness, nausea, vomiting, syncope, headache or loss of vision. The mechanism was disclosed as walking and slipped on dressing gown.
The history on presentation given was:
“Pt tripped and fell on her gown and went face/chin first onto the fireplace with the candleholder on the side hit her chest area”.
I am satisfied that this history given at the time of admission to hospital on this day confirms the fall was sustained by tripping or slipping on her gown and whilst the claimant now suggests a different reason, the fall and the consequential injuries are unrelated to the motor vehicle accident.
Attendance Nepean Hospital 19 April 2017
This was an unrelated attendance for possible bowel obstruction – constipation attributed to medications from fall and unrelated to motor vehicle accident.
The impact of a fall 28 December 2019:
The claimant sustained injury when she fell over a neighbour’s dog on 28 December 2019. Injuries were disclosed as pain and cramping in calves. She attended Gosford Public Hospital and then her general practitioner Dr George for ongoing treatment.
The fall and injuries in this incident are unrelated to the motor vehicle accident.
MEDICAL RECORDS RELATING TO THE MOTOR VEHICLE ACCIDENT
The Ambulance Report 242448 (p 305 of the claimant’s bundle) records the chief complaint as painful sternum. .. denies any neck or shoulder pain, Pt complains of pain in sternum …..Pt feeling nauseous..”
Review of the general practitioners’ clinical records reveal the following reports after the motor vehicle accident claim for personal injury was commenced:
(a) 28 June 2018: history of recurrent headaches since motor vehicle accident in March 2017 CT brain was and.pt was referred for MRI scan but did not go as scared from the noise, no new neurological symptoms but just the headaches since the accident.
(b) 15 December 2017: bilateral neck and shoulder pain 9/12 since accident motor vehicle accident. examination “cannot lift arms above head long enough to wash hair, not able to swim anymore.
(c) 10 August 2017 and 12 August 2017: headaches noted then no further reference to this until 28 June 2018.
It seems from review of the timeline that entries after 2 September 2017 focus on the injuries sustained in the motor vehicle accident. The entry records the following:
“pt came again re fuill [sic] in the injury report equested [sic] by the lawyer but she has not brought the discharge summery [sic] of the MVA which was in March according to her, she will contact napean hjospital [sic] to seen the report to us then we can fill in the report”.
The insurer relied on the commentary of Ms McLaughlin relating to the number of attendances where no complaints were made relating to any motor vehicle
accident injuries. In particular no complaints until 15 December 2017 even though 13 attendances had occurred in that period.I was referred to the lack of neck complaints in the further 16 consultations between December 2017 and February 2019.
It was noted that four physiotherapy attendances took place for treatment between December 2017 and March 2018. Three noted neck pain and one back pain. These occurred after a number of falls.
Radiological Investigations and hospital records
The Emergency Department Assessment records the following:
“…a 84 YO MVA, front passenger, denied LOC, head injuries, no active bleeding, no open wound walked out from car and accident scene to ambulance denied headache and neck pain initially, then in ambulance bay starts complaining of C2-C3 no neurological symptoms pain in middle of chest Rt lower sternum...”
The clinical information noted: “Post MVA – sudden onset severe headache and vomiting. No focal neurology on examination. However patient on aspirin and heparin. To exclude intracranial bleed.”
A clinical history was “MVA 60-80km, pain in middle of sternum”, a CT of chest abdomen and pelvis was undertaken with result “no acute fracture of the clavicles, sternum, ribs or thoracic spine is identified.” (P 211 claimant’s bundle.)
A CT scan of the cervical spine on 12 March 2017 reported: upon “complaints of pain at C2/C3 – midline no LOC”:
“There is a grade 1 posterolisthesis of c5 and C6…Loss of intervertebral disc height, end plate degenerative changes to facet joint arthopathy are noted throughout the cervical spine, more marked at c5/C6 level, There is mild to moderate narrowing of the spine at this level…”
A CT scan of thoracic region dated 12 March 2017 reported:
“No acute or intra-abdominal injury is identified”.
A CT scan of head dated 13 March 2017 reported:
“No evidence of an acute intercranial haemorrhage is identified. No significant interval change is seen in comparison to the previous scan.”
The emergency department impression was: “Likely MSK (musculoskeletal) pain? Element of whiplash with tension headache – secondary to pain, neurologically intact, note patient on aspirin and heparin DCT proph”.
The discharge transfer document recorded the following at p 216 of the claimant’s bundle:
“Thank you for your ongoing care of Pauline Mitchell, an 84 year old lady who was brought to Nepean Hospital on 12/3/2017 following trauma sustained as a passenger in a motor vehicle accident. She was admitted under Acute Surgical Unit for observation and management. Primary, secondary and tertiary surveys were unremarkable, and CT pan scan did not show any significant injuries sustained. She was conservatively managed for pain, and review by the Acute Pain Service and physiotherapy for ongoing management. She underwent a further CT scan of her head on 13/3/2017 for headache in context of antiplatelet therapy and DVT prophylaxis and opioid analgesia, which did not show any acute abnormalities, and her headache resolved. Her admission was otherwise unremarkable, and she remained well, haemodynamically stable and afebrile, tolerating oral intake, pain well controlled and mobilising independently. She was subsequently discharged on 13/3/2017.”
The impression of these reports is that the headaches and nausea experienced on this occasion relate to the medications issued of Aspirin and Heparin to avoid intracranial complications as a phrophelactic.
Claimant’s medical reports
Clinical notes of a number of general practices were produced in the matter. I noted in relation to ongoing episodes of dizziness:
(a) A report to cardiologist Dr Ellenberg, cardiology registrar on 13 May 2017 “Since the fall, Ms Mitchell had developed a number of complaints, and it appeared that fall had affected her confidence significantly”.
(b) Royal North Shore Hospital records on 7 January 2018 note the claimant had been brought in by ambulance following a presyncopal episode, with symptoms including abdominal pain, dizziness and vomiting. Her history described her as “usually independent ADLs and mobility”. There was no mention of symptoms such as vertigo or neck and shoulder pain and no mention of the subject accident.”
(c) An entry in the Richmond Marketplace Medical Centre records dated 2 October 2018 “Feeling generally tired, lack of energy ... no dizziness or vertigo.”
(d) Another entry on 28 February 2019 recorded: “pain in the neck ... associated with dizziness ... o/e movement upper gaze triggers vertigo. Neck discomfort over shoulder and occipital region”
(e) Wyong Hospital discharge summary dated 31 December 2019 notes: “Tripped over the dog”; Ms Mitchell complained of lower limb, hip and calf pain. She stated she ‘otherwise feels very well recently’”. The claimant was noted to live with her daughter and walk her dog daily. The hospital records again described her as “independent with personal ADLs, independent with instrumental ADLs – still cooks, shops. Mobilises with nil aids. Still drives”. Her past medical history did not mention the subject accident, vertigo, or neck and shoulder pain.
(f) Dr George, general practitioner attendance dated 3 January 2020 noted: “Episodes of dizziness associated with nausea and headaches with unsteadiness on her feet”. The impression was of severe hypertension with possible paroxysmal cardiac arrhythmia. There was no mention of, attribution to, the motor vehicle accident here.
(g) Wyoming Medical and Dental Centre record dated 30 July 2020 noted:
“Pt has been having recurrent episodes of feeling tired and would like to withdraw and be left alone. She feels unsteady at times. No chest pain or palpitations, or dizziness as such. She says since she came out of hospital in January, she felt like this”.
Ms Mitchell was:
“…advised not to drive if develops these episodes without warning. It is her responsibility not to drive if she develops these episodes… pt says she knows when she can drive, and her family will not let her drive if she is unsafe”.
Claimant’s qualified medical reports
A Medico-legal opinion of Prof Ghabrial was sought.
Prof Ghabrial (orthopaedic surgeon, 12 August 2019) opined “A severe soft tissue injury to the right shoulder; however, regarding the neck, she has what appears to be severe cervical spondylosis being aggravated by her injuries”. Whole person impairment 13% (5% cervical spine, 8% right shoulder).
Prof Ghabrial was provided…information to support the request for a report.
His opinion and assessment of impairment is considerably greater than that of independent Medical Assessor Cameron. His opinion is treated with caution noting the exaggeration of impairment.
Claimant’s occupational therapist report
Report of Melissa Sale (document A16) occupational therapist, was relied on to support the claim for past care and future commercial care.
The author noted in her report that she had not been provided with the extent of reports relied upon by the insurer’s expert Ms McLaughlin.
“it appears Ms McLauglin has been provided with an extensive list of treating medical reports that I have not been privy to”.
Ms Sale prepared a report quantifying the exhibited capacity of the claimant and she provided a schedule of past and future care and equipment upon which the claimant relied to base losses.
She accepted the assessment of Prof Ghabrial and the history provided to her by the claimant and Rahna.
Insurer’s qualified medical reports
The insurer relied on the opinion of consultant orthopaedic surgeon Dr Nair in his report dated 23 June 2020. He took a history that following the accident the claimant had developed continual headaches, dizziness and right shoulder pain.
(a) The presenting complaints given to him were headaches as well as parasthesia in the subaxial cervical spine and weakness in the right upper extremity.
(b) He recorded she lived alone. This does not accord with the facts presented.
(c) His opinion on causation was as follows:
“In regards to causation, she has not had an MRI scan of either the cervical spine or the right shoulder. The clinical examination did not reveal any acute features attributable to the subject accident. The reports from the Emergency Department in Nepean Hospital did not suggest any acute injuries. Clinical examination and CT scanning is inferior to MRI scanning for assessment of soft tissue anatomy, however from assessment and as well as scrutiny of records, there was no evidence of an acute injury in relation to the subject accident.”
Upon reviewing the full records of Wyoming Medical and Dental Centre in March 2022 he did not change his opinion.
Insurer’s occupational therapist report
A report as to care needs was commissioned by the insurer from Ms McLaughlin who attended upon the claimant on 4 October 2022 (document R 6 of the insurer’s bundle) to assess the claimant’s capacity.
(a) The history of living arrangements was unclear as neither Rahna nor the claimant could recall who was living in the home at the time of the accident. She reported:
“Ms Mitchell is an 89-year-old woman who reported she had been living with her daughter, Rahna, at the time of the accident. Rahna was present during the assessment; she and Ms Mitchell had difficulty recalling who lived in the house at the time. It is a large house, and it seems that family members have moved in and out over the years. Rahna thought her housemate, adult son, and daughter were also living there. She stated another daughter had moved to Sydney, and her two young children stayed with Rahna during the week as they attended a local school. The following school year, the children commenced school in their local area in Sydney.
Ms Mitchell described that she had completed most of the cleaning at Rahna’s house before the accident. She stated she had also completed her own laundry and shared the meal preparation. Ms Mitchell added that after her great-grandchildren began attending school in Sydney, she had driven to Glenmore Park (approximately one hour each way) three days a week to transport the two older grandchildren to school, and she picked them up again in the afternoon. In between, Ms Mitchell would mind their younger sibling, born after her accident. Ms Mitchell reported she had also enjoyed playing the piano, sometimes for hours a day, playing the violin, reading and learning languages.
Ms Mitchell retired from her career in nursing in her 50s. She advised that she and her husband had also owned a building company and that she had been adept at home maintenance.
Ms Mitchell continues to live with Rahna. She reported she had not resumed any of her previous domestic or child-minding activities at her pre-injury level. Ms Mitchell reported an inability to play the piano longer than five to ten minutes at a time due to pain symptoms she attributed to the subject accident. She still reads for shorter periods, including studying German and Latin”. (Page1.)
The impression of Ms Mitchell to Mr McLaughlin was:
“…of a previously independent woman who took pride in her physical and mental capabilities and her usefulness within the family unit. She appeared to have had difficulty adjusting to reducing functional capacities and more restricted occupational roles, with a commensurate loss of confidence and reduced overall activity levels. It may be that her difficulty accepting her limitations led to the inaccurate reporting of her capacity, both during this assessment and indicated in the documentation. Both Ms Mitchell and her daughter impressed as genuine. However, their attribution of Ms Mitchell’s health and functional decline entirely to the subject accident was inconsistent with the information in the reports provided”. (Page 2.)
The claimant provided a history on this occasion of being thrown forward in the accident, and that, as a result, she was bruised “all up my right hip from the seatbelt” and had immediate chest and right arm pain. She reported, “and when I hit the seat coming back, I must have been unconscious”. The claimant added that she had “vertigo straight after” the accident and developed neck pain soon after. This history differs from clinical records contained in the brief and Ms McLaughlin subsequently review the information and commented on the discrepancies in the history and information given by the claimant.
Ms McLaughlin noted that Ms Sale’s report failed to explain on what basis she discounted the reports of retained capacity observed in four different health service records.
Ms McLaughlin noted the history of falls, feeling faint and episodes of sudden syncope increased in frequency from 2015 after two falls in 2015 and a further fall three weeks before the motor vehicle accident.
The claimant’s counsel submitted that the report should not be relied upon as the author “became an advocate for the insurer”. The extent of review of evidence relating to injury, was outside her qualification, she should have formed her view on need for care only. It was argued that it is not the role of the occupational therapist to opine on causation of injury. Contrary to this submission, I consider the report challenging varying histories and drawing attention to inconsistent histories provided by the claimant from time to time assisted the author to establish a more accurate history rather than merely accepting the subjective view of the claimant as to the extent of injury and basis of need for care in relationship to injury sustained in the motor vehicle accident.
Medical Assessments
Medical Assessor Cameron who assessed for physical injuries and his certificate dated 20 April 2022 determined injuries did not exceed 10% whole person impairment. He determined the claimant sustained soft-tissue injury to the cervical spine with 0% whole person impairment. The basis of his assessment was:
“There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation. The Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.”
The second injury he assessed was soft tissue injury to the right shoulder with 2% whole person impairment. The basis of his assessment was:
“Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Permanent Impairment Guidelines, section 6.40, page 9 are noted: ‘Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants' efforts. The Assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report’. It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.
The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation at the acromioclavicular joints.”
Of note is the fact that the Medical Assessor had the clinical records of Dr George and made no deduction for pre-existing or subsequent causes when assessing whole person impairment.
Had the Medical Assessor considered the earlier complaints as noted in the claimant’s clinical history relevant, there would have been deduction for pre-existing conditions.
(a) He assessed her in person on 8 April 2022.
(b) In the history provided, the claimant reported the fall one month after the motor vehicle accident “She thought she tripped.”
(c) On examination he noted “inconsistent movement at the right shoulder”.
The Medical Assessor had within his brief the medical records of Wyoming Medical Centre, Nepean Hospital records and confirmed the history of diverticular disease, chronic kidney disease, hypertension, kyphosis and rotator cuff syndrome. He was unaware of dates of diagnoses though.
He commented that the entry of Dr George in clinical records did not list specific injury sites attributable to the motor vehicle accident. Thereafter the attendances took place after the fall where;
“…the claimant sustained rib fractures on the right 7th and 8th which were flail, and right 7th to 11th posterior fracture with also a right transverse process fracture. These were treated with analgesics requiring opioids”. (Page 545 of the claimant’s bundle.)
His diagnosis and reasons were:
“In the motor vehicle crash on 12 March 2017, Mrs Mitchell sustained soft tissue injuries. These are difficult to characterise based on the available information.
During the hospital admission, there is largely non-specific information recorded. The subsequent consultation with Dr George, general practitioner, does not specify location of injuries.
Following this, there is a fall with significant rib fractures.
On the balance it is likely that, in the subject motor vehicle crash, Mrs Mitchell sustained soft tissue injuries to the cervical spine and right shoulder.”. ‘This is consistent with the mechanism of injury, Mrs Mitchell’s report of injury and the available clinical records.”
Findings on Injury
The claimant was involved in a motor vehicle accident on 12 March 2017. She was taken to hospital and reviewed for complaints of sternum pain. A number of X-rays and scans were undertaken.
The claimant sustained soft-tissue injuries in the subject accident that required medical assessment and a short period of hospitalisation.
The claimant did not require medical attention post discharge from hospital for motor vehicle accident related injuries in the weeks thereafter to the time of the April 2017 fall.
A CT scan of the chest reported on by Dr Hawkins taken on 11 April 2017 at 11.30pm noted “a subacute healing fracture of the sternal body with associated bony callus formation” (p 86 of the claimant’s bundle). This supports a possible earlier sternal fracture. Whether this was due to the February 2017 fall or the motor vehicle accident is uncertain.
The claimant then sustained rib fractures and facial lacerations requiring hospitalisation and initial cervical collar in April 2017.
Thereafter the claimant did not attend her medical practitioners for motor vehicle accident related complaints until August 2017 for headaches and then the focus on a personal injury claim in September 2017 began.
With reference to the claimed ongoing conditions I note the following:
(a) Vomiting and dizziness:
the complaints are made nearly two years post – motor vehicle accident in notes of Dr George, general practitioner dated 3 January 2020 and The Wyoming Medical and Dental Centre record dated 30 July 2020. These referred to dizziness and unsteadiness in the context of subsequent health issues unrelated to the subject accident.
(b) Neck/right shoulder pain:
the initial reports indicated there was no neck or shoulder injury. Full ranges of motion were retained, there was a normal neurological examination, and radiology investigations demonstrated no acute changes.
(i)The first mention in the general practitioner’s records of neck pain was nine months later. The Richmond Marketplace Medical Centre record of 15 December 2017 noted:
“bilateral neck and shoulder pain since accident MVA… cannot lift arms above head enough to wash hair. Not able to swim anymore”.
(ii)The first mention of right shoulder symptoms in the general practitioner records followed the subsequent falls.
(iii)There were 13 general practitioner consultations between the motor vehicle accident and this entry without any mention of shoulder or neck pain. It is difficult to reconcile significant symptoms or functional restrictions consequent to the accident with the delay in the reporting of symptoms.
(iv)There were four physiotherapy consultations between December 2017 and March 2018. Three noted a report of, and treatment for, neck pain. One consultation was for lower back pain. The next report of neck pain was the Richmond Marketplace Medical Centre record of 28 February 2019 which noted: “pain in the neck, shooting down the right shoulder, shooting to the head. Associated with dizziness”.
(v)Further review of clinical records confirmed there was no further mention of neck pain in the general practitioner records from December 2017 to February 2019, despite 16 consultations in the interim.
(c) Headaches
the first mention of left sided headaches were noted in an entry on 10 August 2017 as “Gradually getting worse since the MVA in March”. A repeat brain CT was requested.
(i)was again reported on 12 August 2017, with no subsequent report until 28 June 2018. At that time, “recurrent headaches since the MVA in March 2017” was noted.
(ii)There was a prior history of headaches, which included a brain CT around 18 months prior, and the difference in frequency of headaches after the accident is unknown.
Dr Ellenberg, cardiology registrar on 13 May 2017 noted that since the April 2017 fall, Ms Mitchell had developed “a number of complaints”, and it appeared the fall had “affected her confidence significantly”. Dr Ellenberg made no reference to any motor vehicle accident related injuries.
Royal North Shore Hospital records of an attendance on 7 January 2018 where the claimant had been brought in by ambulance following a presyncopal episode, with symptoms including abdominal pain, dizziness and vomiting. Clinical notes on this occasion recorded “usually independent ADLs and mobility”. There was no mention of symptoms such as vertigo or neck and shoulder pain and no mention of the motor vehicle accident or related injuries. The claimant had a history of abdominal complaints including severe constipation.
Wyong Hospital discharge summary dated 31 December 2019 relates to an incident where the claimant “tripped over the dog”. Complaints were of lower limb, hip and calf pain. The claimant reported she “otherwise feels very well recently”. Ms Mitchell was noted to live with her daughter Rahna.
The medical opinion of Prof Ghabrial is not accepted as his assessment overstates the impairment and is subjectively supportive of the claimant, noting he is qualified by the claimant. Taking into consideration the insurer’s position based on no motor vehicle accident related injury as opined by Dr Nair, I refer to the independent medical assessment of Medical Assessor Cameron.
The Medical Assessor had the benefit of both the claimant’s and the insurer’s expert opinion. Noting that the Medical Assessor holds a neutral position, I have no reason to consider that the determination made by Medical Assessor Cameron as to injury should not be preferred.
I find that the claimant sustained relatively minor soft-tissue injuries to her neck and right shoulder as a consequence of the motor vehicle accident. Her injuries to her right shoulder were an exacerbation of pre-existing right rotator cuff pain. Subsequent falls unrelated to any injuries sustained in the motor vehicle accident have occasioned injuries and a deterioration of the claimant’s well-being which have significantly impacted on the claimant’s ability to undertake activities of daily living thereafter.
The impact of the motor vehicle accident injuries on the claimant’s ability to perform activities of daily living and need for care has been considered against a background of pre-existing conditions and subsequent non-accident related injuries occasioned by subsequent falls.
Past treatment losses
The claimant claimed the sum of $2,571.05 based on a Medicare list of charges for services rendered between the date of accident and 18 February 2021. Contained within the material produced are the details of the consultations at pp 553 to 555 of the claimant’s document bundle.
The insurer in submissions submitted that the attendances contained are not related to the motor vehicle accident. Those on 19 April 2017, 2 May 2017 relate to the fall of 11 April 2017.
I have reviewed the items and noting the finding of Medical Assessor Cameron consider the attendances that relate to shoulder investigations are motor vehicle accident related.
Past losses claimed were:
(a) s 83 expenses were conceded by the insurer in the sum of $577, and
(b) Medicare amount claimed totalled $2,571.05. The insurer questioned which attendances were related and submitted a number were related to the fall.
102. Having reviewed the Medicare schedule and the insurer not addressing the individual items, which were able to be clarified as clinical records were available, I propose to allow the sum of $1,000 as I consider a number were related whilst others were not specified as to what treatment was received and I could not distinguish the services merely by the dates of service.
103. I allow the sum of $1,577 for past treatment losses.
Future treatment expenses
The claimant has a life expectancy of six years.
The claimant sought the sum of $4,255 for future treatment. The basis of the claim is for the following treatments need:
(a) medications $5 weekly;
(b) general practitioner attendances $5 weekly, and
(c) occupational therapist $1,940 once off.
The insurer submitted that there was no medical evidence to support this claim. The claimant has no injuries which require treatment and no allowance should be made.
I have found that the claimant sustained injury in the motor vehicle accident. Thie issue of whether the claimant requires specific ongoing treatment for the motor vehicle accident related injuries as claimed against the background of other general health conditions she suffers now and other ongoing issues she has with due to subsequent falls also unrelated to the motor vehicle accident.
Accepting that the claimant initially sustained soft-tissue injury to her neck and right shoulder the extent of ongoing medication need of $5 weekly and general practitioner attendances of $5 weekly is not reasonable or necessary. The claimant has multiple other conditions requiring regular medical attention.
The claimant declines prescription medication for pain and the use of Panadol on her evidence of six tablets include the use of such over the counter medication for headaches which she suffered before the accident and have been related to blood pressure and other health issues.
The claimed cost of $5 weekly for medical attendances with her general practitioner when she is regularly attending for other conditions is not reasonable or necessary at the rate claimed.
The cost for occupational assessment is neither reasonable or necessary having regard to the minor nature of motor vehicle accident injuries sustained.
I allow a buffer for future treatment in the sum of $1,000 for conservative management of occasional flare up of symptoms for the remainder of the life.
The claim for care – past
The claimant seeks damages for her inability to undertake tasks which she was performing prior to the motor vehicle accident. The claimant in particulars provided to the insurer under cover of letter dated 1 September 2022 the following particulars of the claim:
“4(a) Prior to the subject accident, our client carried out most domestic tasks including vacuuming, polishing, washing windows, cooking, dishes and gardening too.
The claimant drove her grandchildren quite a distance to and from school prior to the accident, which she can no longer do so. The claimant has pain in her neck and cannot stand for periods to make meals. The claimant did all domestic duties inside a 5-bedroom house with a large dining room, lounge room, and playroom before the motor vehicle accident.
The claimant was generally very active prior to the motor vehicle accident, including swimming twice weekly and hiking. The claimant was assisting her family members with activities of daily living. The claimant would also care for her young great grandchildren.
(b) Prior to the subject accident, the claimant was performing 4.5-5 hours if domestic tasks per day as she lives in a two-storey house.”
As a consequence of the injuries sustained the claimant was no longer able to undertake activities without the assistance of her daughter Rahna. Particulars provided were:
“4(c) Following the subject accident, 4 adults and 2 children lived with her. Regarding the domestic tasks performed by everyone, the 4 adults our client was living with were all working full-time prior to the subject accident and were therefore performing few domestic tasks.The claimant's daughter, who was the mother of the 2 children, performed laundry duties for herself and 2 children only. All other domestic, including tasks involving the claimant, were performed by the claimant prior to the accident.
Mrs Mitchell prior to the accident was living with her daughter. Due to neck pain and pain in the right upper arm her movement is limited. The claimant is unsteady on her feet and cannot stand for any length of time. As a result, her daughter is assisting with household and personal tasks.
The claimants (sic) daughter, Rahna Crowhurst provides constant personal and domestic care between 10 to 15 hours per week since the motor vehicle accident including bathing, dressing, washing, doing her hair (washing and dyeing), grooming and anything which requires lifting her arms above her head. Domestic tasks performed consists of shopping, cooking, cleaning, washing, making the bed and anything requiring Mrs Mitchell to stand for a long period of time.”
Relying on the assessment made by Ms Sale following an examination of the claimant’s need a claim was made for past care in the sum of $107,635.94 based upon the opinion of Ms Sale qualified by the claimant and the schedule she prepared supporting the basis of past need.
Ms Sale’s report quantified the claimant’s need as: per scheduled noted on p 495 of the claimant’s bundle.
(a) 10.25 hours weekly from 14 March 2017 to 12 April 2017 and thereafter 7.5 hours weekly.
The insurer disputed the injuries sustained in the motor vehicle accident were of such significant or impact as to necessitate the claimant being provided care. Further it submitted that contemporaneous reports of the claimant’s ability to undertake tasks was in stark contrast to the claim made. Noting the consequence of a later fall on 13 April 2017, any need from that point on was due to the injuries she sustained in the fall.
Further entries in clinical records such as a report to Royal North Shore Hospital on 7 January 2018 noted she was independent in activities of daily living and mobility.
In Wyong Hospital records dated 31 December 2019 when attending due to a fall whilst walking a dog the history provided at this point in time noted that she was independent in activities of daily living , cooking shopping and that there was a functional decline noted after this fall.
Dr Nair qualified by the insurer commented,
“She stated that she has had a significant deterioration in her functional capabilities including difficulty with self-care activities and recreational activities including playing the piano. From clinical assessment as well as scrutiny of the documents provided, there were no acute injuries identified to correlate the deterioration in function with the subject accident.”
Submissions on care
The parties were in significant dispute as to the weight that should be given to an occupational therapist report undertaken at Nepean Hospital in April 2017 after the claimant sustained injuries in a fall at her daughter Kevina’s home in Glossodia.
The insurer relied heavily on the history provided to Ms Wright by the claimant and the claimant’s grand-daughter Jasmine that she was independent in activities of daily living. Noting this history was post motor vehicle accident at the time.
The insurer drew my attention to the fact neither Kevina or Jasmine provided any statement as to care given to the claimant immediately after the motor vehicle accident when on the claimant was residing with Kevina.
It was submitted by the insurer, that a Jones v Dunkel [2009] NSWCA 227 inference could be drawn that their evidence would not have assisted the claimant’s care claim.
Upon hearing the evidence of Rahna Crowhurst, the insurer in oral submissions drew my attention to the fact that Rahna had not seen her mother between the date of the motor accident on 12 March 2017 and the subsequent fall on 17 April 2017 as she was staying with Kevina and did not see her until she returned some six weeks after the fall.
The statement of Rahna dated 4 February 2022 at paragraphs 14 and 17:
“14. My mother has required constant personal and domestic care since the motor vehicle accident….
17. The personal and domestic assistance provided by me to my mother would equate to at least 10 to 15 hours per week probably more.”
failed to disclose that the care provided only commenced after the subsequent April fall.
The claimant was adamant she was a highly functioning individual before the accident there was no evidence apart from the history to Ms Wright the occupational therapist as to what took place in the four weeks after the motor vehicle accident and the fall.
The insurer submitted that the dramatic decline in capacity now reported by the claimant and her daughter, was the result of the fall in April 2017 and the subsequent health issues not the motor vehicle accident.
Whilst the claimant has taken the view that the April fall was a consequence of ongoing motor vehicle accident related fainting spells, the insurer on this point submitted this version of events did not accord with contemporaneous records of April 2017 and noting the claimant poor recollection of event the hospital records should be preferred.
The insurer picked up during the assessment conference that the key witnesses as to care immediately post motor vehicle accident were silent.
The insurer also referred to Rahna’s lack of awareness of the claimant’s pre-accident medical history even though the claimant was according to her evidence, living with her for at least three to four years before the accident. The witness had no recollection of any problems as it related to falls, pain, medications, complaints of hip getting sore on walking. This witness confirmed “she was very close to her mother” and so her evidence is subjective and where possible, I should prefer objective information.
Rahna was questioned on the preparation of the schedule of tasks submitted to assist her mother’s claim and why it did not disclose the fact that she did not care for her mother until a number of weeks after the April 2017 fall. Her response was she just recorded the tasks she did and did not think about it.
Assessment of past care
I am satisfied having reviewed the clinical records that the claimant had episodes of being unsteady on her feet before the motor vehicle accident, and the contemporaneous documentation confirms functional independence at her premorbid level following the motor vehicle accident, noting that:
(a) one month after, Ms Mitchell had a fall resulting in significant injuries, including multiple rib fractures. During her admission, an occupational therapy assessment (13 April 2017) stated Ms Mitchell’s usual occupational performance included regular swimming. Her pre-morbid functional mobility was independent, including transfers, with “nil aids”. She drove and was independent with personal and instrumental activities of daily living.
Alison Wright, occupational therapist assessed the claimant during her hospitalisation at Nepean Hospital on 13 April 2017 at 4.30pm. The therapist was aware of the motor vehicle accident “Pt involved in MVA 4 weeks ago”. (Page192 of the claimant’s bundle.)
A history was taken as recorded in the section usual occupational performance as follows:
“Functional Mobility: Independent nil aids/ Independent transfers. Pt was regularly swimming before admission.
ADL: Independent with bathing, toileting, grooming, feeding and dressing.
IADL: Independent with shopping, cooking, cleaning/tidying, laundry. Grand daughter reports same.
Community Access: Pt still drives”.
The plan noted was:
“1. Grand daughter and pt report no concerns with pt going home as pt pain is under control.
2. Pt and Grand daughter declined need for equipment as pt close to baseline, limited by rib pain. OT will be unable to review pt before Tuesday, grand daughter happy to take pt home with current level of functioning”. (p193 claimant’s bundle).
On 15 April 2017 the claimant complained of chest tightness and neck stiffness whilst in hospital. This complaint was related to the fall. On 16 April 2017 she reported no pain and was discharged into her grand-daughter’s care.
Other entries in patient history records confirm the following:
(a) Two months after the subject accident, the High Street Family Doctors general practitioner record noted on 2 May 2017 that Ms Mitchell continued to walk her dog regularly, confirming retained functional mobility.
(b) Ten months after the subject accident, Ms Mitchell was admitted to Royal North Shore Hospital following a presyncopal episode. The hospital record of 7 January 2018 confirmed Ms Mitchell was independent in her activities of daily living and mobility.
(c) Thirty-three months after the subject accident, Ms Mitchell presented to Wyong Hospital on 31 December 2019 with lower limb pain following a fall while walking her dog. Ms Mitchell was again noted to be independent with personal activities of daily living and instrumental activities of daily living, including cooking and shopping.
The functional decline reported by the claimant and her daughter to the occupational therapist Ms Sale and Ms McLaughlin and to the Personal Injury Commission in statements of care are not reasonable and necessary or attributable to injuries sustained in the motor vehicle accident. The need for assistance claimed has occurred as a consequence of the numerous falls the claimant has suffered post motor vehicle accident and are related to other medical conditions as reviewed by her neurologist and cardiologist.
I am persuaded by the opinion of Ms McLaughlin who undertook not only an assessment of the claimant but a thorough review and cross referencing of the medical information provided to her. She opined that whilst the claimant may have sustained soft-tissue injuries to the neck and shoulder, consistent with Medical Assessor Cameron’s determination on injury, that there was no significant reduction in the claimant’s functioning from her pre-injury levels caused by the motor vehicle accident.
Whilst the claimant may have subsequently received significant amounts of care performed by her daughter Rahna, the provision of such care must be reasonable and necessary and relate to injuries sustained in the motor vehicle accident to be compensable.
The CT scan of the chest reported on by Dr Hawkins taken on 11 April 2017 at 11.30pm noted “a subacute healing fracture of the sternal body with associated bony callus formation” (p 86 of the claimant’s bundle). This supports an earlier sternal fracture the aetiology is unknown as the claimant was involved in a significant fall one month before the motor vehicle accident.
Alison Wright, occupational therapist, assessed the claimant during her hospitalisation at Nepean Hospital on 13 April 2017 at 4.30pm. The therapist was aware of the motor vehicle accident “Pt involved in MVA 4 weeks ago”. (Page192 of the claimant’s bundle.)
A history was taken as recorded in the section usual occupational performance as follows:
“Functional Mobility: Independent nil aids/ Independent transfers. Pt was regularly swimming before admission.
ADL: Independent with bathing, toileting, grooming, feeding and dressing.
IADL: Independent with shopping, cooking, cleaning/tidying, laundry. Grand daughter reports same.
Community Access: Pt still drives”.
The plan noted was:
“1. Grand daughter and pt report no concerns with pt going home as pt pain is under control.
2. Pt and Grand daughter declined need for equipment as pt close to baseline, limited by rib pain. OT will be unable to review pt before Tuesday, grand daughter happy to take pt home with current level of functioning”. (p193 claimant’s bundle).
On 15 April 2017 the claimant complained of chest tightness and neck stiffness whilst in hospital. On 16 April 2017 she reported no pain and was discharged into her grand-daughter’s care.
The opinions on care are based upon whether the extent of injury resulting for motor vehicle accident related injuries is accepted. Ms McLaughlin opined no assistance was required and Ms Sale supportive of the claimant and not furnished with all the available medical records held the view that it was reasonable for the claimant to receive care provided by her daughter.
Prof Ghabrial considered the claimant’s need for assistance in his report dated 12 August 2019. He expressed a view that “she would require domestic assistance on an average of four hours per week for activities she cannot perform because of her right arm injury.” (Page 490 of the claimant’s bundle.)
Whilst he is not qualified as an occupational therapist it is interesting that he came to this opinion of four hours care assistance with a much higher assessment of permanent impairment of 13% whole person impairment to that of Medical Assessor Cameron’s 2%.
Ms McLaughlin did not find any basis for need.
I accept that the claimant has received and continues to receive considerable assistance from Rahna, who she presently lives with. Rahna has described a very close relationship with her mother. Her evidence is that of a loving and caring daughter.
The issue before me is whether there is a need for care is related to injuries sustained in the motor vehicle accident and whether the extent of need exceeds the statutory threshold prescribed by s 141B of the Act.
Damage for gratuitous care and assistance are permitted but restricted by s 141B that damages can be awarded as follows:
(a) no compensation is awarded if the care and assistance would have been provided anyway;
(b) no compensation is awarded unless the service are provided or are to be provided for at least six hours a week and six consecutive months and continuing, and
(c) an hourly rate is prescribed linked to average weekly earnings of all NSW employees.
On the information before me, relying on the contemporaneous histories provided by the claimant and her grand-daughter Jasmine to Ms Wright and other medical personnel, I find that the extent of injuries sustained in the motor vehicle accident did not cause the claimant to require the level of past care now claimed.
I am satisfied that the extent of injury reported and the finding of Medical Assessor Cameron on injury support the proposition that any additional care provided in direct relationship to the injuries sustained due to the motor vehicle accident would not have exceeded the statutory threshold.
The impact of subsequent falls cannot be understated. I have formed the view based on the medical records that the described significant deterioration in the claimant’s ability to undertake self-care and domestic activities are related to the subsequent injuries occasioned by the numerous falls post motor vehicle accident and other medical conditions.
I assess past care claimed as $nil.
Future care losses
The claimant made claim for future commercially provided care in the sum of $107,407.80. This claim was supported by Ms Sale’s report. Ms McLauchlin qualified by the insurer came to a very different conclusion that the claimant required no ongoing assistance.
The report of Ms Sale considered that the claimant needed assistance with self-care activities for the remainder of her life amounting to a claim of $53,971.33 and assistance with domestic tasks in the sum of $21,986.71 as well as transport assistance $7,196.18 a total of $83,154.22.
An additional claim of assistive equipment and home modifications were claimed in the sum of $17,313.68.
Ms Sale’s accepted the history of care provided by the claimant and Rhana and unquestioningly accepted that all ongoing restrictions in activities were consequent upon the injuries sustained in the motor vehicle accident without any consideration of the impact of pre-existing conditions, and the history of falls both prior to and subsequent to the motor vehicle accident.
Ms Sale’s report was based upon assumptions provided by solicitors for the claimant. She considered the claimant sustained severe soft tissue injury to the right shoulder and severe cervical spondylosis (aggravation).
Ms Sale preferred the opinion of Prof Ghabrial as to prognosis and confirmed she assumed the facts as listed in the letter of instruction provided by solicitors for the claimant when preparing her report.
A history was taken by Ms Sale of sudden onset of dizziness, nausea, headaches and fainting spells with associated falls pre-motor vehicle accident injury. Notwithstanding this, she reported:
“…the claimant described an active lifestyle prior to the MVA on 12 March 2017. She mobilised unaided. She was unrestricted in her personal care, domestic duties pre-injury, and leisure pursuits which included walking her dog daily and swimming regularly. She provided a picture of someone fiercely independent and stoic, commenting several times throughout the assessment that she was not limited by her age…” (p499 claimant’s bundle)
A supplementary report was commissioned in response to criticism by Ms Sale of Ms McLaughlin’s report.
The issue is whether the injuries sustained in the accident were of such magnitude to form the basis of claimed need for the remainder of the claimant’s life expectancy.
Having come to the decision that the claimant did not require care in the past to the level being claimed, and that any assistance reasonably required would not have exceeded the statutory threshold, those conclusions are not changed as to the future, with the exception that when considering the claimed care into the future being provided on a commercial basis, the threshold of 6 hours weekly and continuing is not applicable.
When assessing future care, it can be for periods less than 6 hours weekly. It can be as little as 30 minutes or a number of hours depending on the basis of need.
I must consider the likelihood of such services being provided commercially rather than the previous gratuitous basis. I accept that the claimant living with her daughter will have some assistance gratuitously provided and also that it is likely that commercially provided care would be required when family is not available.
Ms McLaughlin opined that “No past or future personal care or domestic assistance is supported.” When making recommendations as to care, she responded.. “There is no requirement for home modifications or adaptive equipment due to the subject accident” (p33 of insurer’s bundle).
The insurer submitted that the claim for a chair lift was also unreasonable and unnecessary. The basis of any ongoing need for assistance is age related noting the claimant is now 90 years old and has had a longstanding history of falls causing injury and future need is unrelated to the MVA.
I am not satisfied that the level of claimed commercial care of 5.75 hours weekly as prescribed by Ms Sale in her report of 21 March 2023 is reasonable and necessary and solely attributable to the injuries sustained in the motor vehicle accident. Ms Sale disclosed she was not privy to a significant amount of medical records available to Ms McLaughlin and did not receive the determination of Medical Assessor Cameron.
The difference between the reports is the author’s perception of extent of injury. Ms Sale relying on the opinion of Prof Ghabrial concluded the claimant suffered “severe soft tissue injury to the right shoulder and severe cervical spondylosis” whereas Ms McLaughlin concluded “soft-tissue injury to right shoulder and cervical spine”.
When the claimant was assessed by both occupational therapists it was a number of years after the motor vehicle accident and after the subsequent medical episodes and falls. Ms McLaughlin was not able to fully assess the claimant as she was unwell on the day of assessment and physical capabilities were untested. Ms Sale was assessing the claimant as at 21 February 2023 where she was able to exhibit her limitations.
Noting my determination on injury and accepting that the claimant has sustained a soft-tissue injury to her cervical spine and right shoulder against a background of other subsequent injuries, as determined by Medical Assessor Cameron. I am satisfied that the claimant will require some assistance commercially provided for the remainder of her life. Whilst family members have undertaken assistance to date, there is likely to be circumstance in the future where family members are unavailable due to other commitments. I do not accept that the level of commercially provided assistance prescribed by Ms Sale is reasonable and necessary and attributable to the motor vehicle accident injuries.
In the circumstances where there are other injuries sustained unrelated to the motor vehicle accident which impact on the claimant’s ability to undertake activities of daily living, I consider a buffer is appropriate to compensate for the costs of commercially provided care to be provided on these occasions.
I assess future care losses in the sum of $25,000 for assistance required from time to time where the claimant’s ability to perform her daily activities are compromised by the motor vehicle accident related injuries. I also allow the sum of $904 for equipment to enable the claimant to participate in activities of daily living activities as noted in Ms Sale’s schedule at pp 514-517. The claim for robot vacuum cleaner and chair lift is not reasonable or necessary and is disallowed.
I assess future care losses in the sum of $25,904.
Assessment of Damages Summary
Under sub-s 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Economic losses
· Past Treatment $ 1,577
· Future Treatment $ 1,000
· Past Care $ nil
· Future Care $ 25,904
Total of economic losses and non-economic loss $ 28,481
Total Damages Assessed $ 28,481
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Section 83 payments $577
Costs and disbursements
The insurer made submissions on the costs claimed. I received their reply on 1 August 2023. The insurer allowed all sums claimed with the exception of hours claimed for conference directly related to the assessment conference. An allowance of 1 hour for such conferences was submitted. I considered this was harsh.
The claimant submitted costs and sought 4 hours for the conferences directly related to the assessment conference.
I assess the claimant’s legal costs and disbursements in accordance with ss 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet and my reasons for any disputed claims are as follows:
Costs allowed were those as claimed and agreed. I allowed the four hours for conferences related to the assessment conference.
Conclusion
On the issue of liability for the claim, the NRMA’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
Under sub-ss 94 (3) and 94 (4) of the Act,I specify the amount of damages for this claim as $28,481
The claimant’s economic loss is reduced by, and the insurer is to have credit for the sum of $577 in accordance with s130 of the Act.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $13,920.50 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
• Motor Accidents Compensation Act 1999 (NSW);
• Motor Accidents Compensation Regulation 2015;
• Claims Assessment Guideliness, and
• list any other legislation or guidelines considered in decision.
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