QBE Insurance (Australia) Limited v BTR

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v BTR [2024] NSWPICMP 325
CLAIMANT:	BTR
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	23 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Home; the claimant sustained fractured right femur, fractured right sacral ala, a fracture of the 1st digital phalanx, second and 3rd proximal phalanx of the right foot; non-displaced calcaneal anterior process fracture; lateral malleolus fracture; ongoing back pain, thigh discomfort, ankle and neck pain; MA Home found physical injuries gave rise to need for past domestic assistance and for future domestic assistance from date of assessment and continuing for one year; whether treatment reasonable and necessary referred back to Medical Assessment Services for assessment by Occupational Therapist (OT); question of child care assistance for two children including autistic son; claim for past domestic assistance abandoned by claimant; Held – need for child care for son reasonable and necessary but does not relate to the injury caused by the accident; physical injuries give rise to need for domestic assistance from the date of the medical assessment and continuing for one year relating to the injury caused by the accident; whether future domestic assistance reasonable and necessary in the circumstances referred back to Medical Assessment Service for assessment by an OT.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 22 March 2023. 2. The claim for past domestic assistance has been abandoned. 3. There is a need for future domestic assistance from the date of the medical assessment and continuing for one year relating to the injury caused by the accident. 4. The Review Panel refers the following treatment and care dispute back to the Medical Assessment Service for assessment by an occupational therapist: · whether 4 hours per day or 28 hours per week for proposed domestic assistance arising from the physical injuries from the date of the medical assessment and continuing for one year is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

On 24 March 2021 BTR (the claimant) was riding a motorcycle on Southern Cross Drive, Mascot in a group of other riders when the rider in front fell off his bike. The claimant could not avoid colliding with his body and as a result she fell of her bike and was struck by another motorbike trailing behind (the accident).
At the date of the accident BTR was 28 years of age. She is now 31 years of age.
On 31 March 2021 BTR lodged an Application for personal injury benefits seeking statutory payments in respect of injury sustained in the accident.
QBE insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to BTR under the Motor Accident Injuries Act 2017 (the MAI Act).

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

The Panel issued a Direction to the parties on 1 June 2023 which required each party to file an indexed, paginated bundle of documents. In response to this direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 134 and marked “Bundle per PIC Directions”. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 90 and marked “PIC application re care”.
On 30 August 2023 the Panel directed the claimant by close of business 27 September 2023 to upload to the portal a copy of the NDIS file pertaining to the claimant’s eldest son. The NDIS file as of 16 September 2022 comprising 678 pages was uploaded to the portal on
9 February 2024 (NDIS file).
The insurer uploaded an Application to Admit Late Documents dated 5 March 2024 (AALD).

Surveillance footage

On 20 September 2023 the insurer uploaded an AALD in respect of the following:
·        report of Procare dated 30 January 2023 and surveillance footage of 10, 11, and 12 January 2023;
·        report of Procare dated 6 February 2023 and surveillance footage of 10, 11, and 12 January 2023;
·        report of Procare dated 27 April 2023 and surveillance footage of 18 and
19 April 2023;
·        report of Procare dated 2 June 2023 and surveillance footage of 22, 23, 24, 25, 26, 27 and 28 May 2023, and
·        a letter to Stephen Spinak Solicitors undated seeking consent to the inclusion of the surveillance footage for consideration by the Panel.
On 12 February 2024 the claimant indicated an objection to the surveillance footage being considered by the Panel. The claimant notes the footage dates to January, April and May 2023 and did not reflect the claimant’s current need for care. Further, the claimant submits the footage only shows the claimant’s outdoor activities and was relied upon by the insurer to dispute the claimant’s work capacity not her need for care.
On 12 February 2024 the insurer provided submissions in response. The insurer noted in accordance with Rule 109 of the Personal Injury Commission Rules 2021 surveillance may not be referred unless exceptional circumstances exist. The insurer notes “exceptional circumstances” can include something that is unusual, special and/or uncommon (Ghandi v Coles Supermarkets Australia Pty Ltd). [1]
[1] Ghandi v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC275.
The insurer states the surveillance footage is not limited to the claimant’s work capacity but shows a discrepancy between the claimant’s presentation and the history she has provided to medical practitioners.
In relation to the timing of the footage the insurer submits the surveillance was relevant where the application in relation to care was lodged on 17 June 2022, where the claimant was assessed by Medical Assessor Home on 14 March 2023 and where the insurer lodged the review application on 20 April 2023. The insurer submits any elapse of time between the Certificate of Medical Assessor Home, the surveillance and the current assessment is due to the claimant’s failure to attend medical examinations on behalf of the Panel on
29 September 2023 and 19 January 2024.
The insurer submits the claimant is not prejudiced by the inclusion of the surveillance where it was served on 30 August 2023.
The Panel finds the surveillance footage relates to the question of the claimant’s capacity which is relevant to the question as to whether there is a need for care related to the injury caused by the accident and which is reasonable and necessary in the circumstances. The Panel considers evidence which may be inconsistent with the claimant’s presentation to medical practitioners constitutes “exceptional circumstances” and proposes to admit the surveillance footage.

BACKGROUND

In the accident BTR sustained a fracture of the T8 vertebral body and a fracture of the proximal right femur. She also sustained pelvic fractures through the right sacral ala and the superior pubic ramus. She sustained fractures of the right ankle, involving the distal fibula and the anterior calcaneal process, a fracture of the navicular and further fractures of the right foot involving the 2^nd, 3^rd and 1st toes. She also sustained deep abrasions with full thickness skin loss to the left knee.
On 24 March 2022 BTR underwent surgery to remove the right femur intramedullary nail.
The insurer relied upon the Benchmark report dated 4 April 2022 which made the following recommendations:
“●      Provision of domestic assistance for 4 hours per fortnight
·        BTR has the physical capacity to use equipment provided and pacing strategies to complete basic meal preparation for her children and herself throughout the day to serve meals at mealtimes.
·        Provision of a laundry trolley
·        Revert cost for provision of care for eldest child back to NDIS funding, this totals 38 hours per week. It was provided prior to the subject MBA and is not considered reasonable for the Insurer to continue to fund this.
·        Remove Care Worker for the 2nd child. He is considered to be of an age where he can complete basic daily tasks independently or with direct verbal prompting which BTR has the capacity to complete.”
On 8 April 2022 the insurer denied the request stating:
“… any additional ADL or childcare support and base their decision on the amount of appropriate care and ADL assistance determined via the ADL assessment and documented in the ADL report dated 4/4/22. This decision has been made as it's not deemed to be reasonable and necessary for the following reasons:
·QBE has conducted an independent review of your care needs;
·QBE has confirmed that NDIS funding is available for the care of your son and as this care was pre-existing through NDIS it is not appropriate for QBE to continue to fund this support. This care is not CTP claim related.”[2]
[2] Bundle per PIC Directions p 122.
Further the insurer stated:
“QBE as per the recommendation in the report have advised your care provider ‘We Love with Care’ that we will continue to support care through the school holidays at the pre operation level of;
6 hrs of care Mon -Friday
4 hrs of care Sat and Sun X two care workers.
After the date 22/4/22 - care will reduce to 4 hrs of domestic assistance per fortnight as per the ADL report. The equipment documented in the report will be provided.”[3]
[3] Bundle per PIC Directions p 122.
On 8 April 2022 the claimant requested an internal review of that decision. In her email she stated:
“I do not agree with the decision you guys have made this report it states that it has been done on fourth of April which Belinda has not came and seen me after my operation which my operation was done on 24 March 2022.
Also my specialist my surgeon that has done the operation on me who is going to provide a report of my abilities because I am on crutches right now so how can I have less hours than before after my operation.
Overall Belinda has made a report according to before my operation I believe she has not advise me that this was getting done.
I will be chasing the report from my surgeon as he mentioned when I saw him on Monday Belinda was meant to do it but I don’t know what happened there and there is this report now and there’s this email now so I am very confused anyway I will send the report to you guys and will go from there because this does not make sense to me.
Ps.
My case manager Karen can’t even listen to me when I talk to her on the phone so there is not even like people that I can’t even reach I can’t speak to I can’t reach Belinda I can’t reach my case manager they don’t get back to me and you just make up these decisions on your own it’s not acceptable.”[4]
[4] Bundle per PIC Directions p 121.
On 28 April 2022 the insurer issued a Certificate of Determination – Internal Review affirming the original decision.[5] The insurer stated the review would be conducted under s 3.26 of the MAI Act and in conjunction with s 3.24 of the MAI Act on the basis they were reviewable decisions under Schedule 2(1)(j) of the MAI Act and Schedule 2(b) of that Act. The insurer noted that s 3.26(1)(a) only entitled a claimant to statutory benefits if the claimant provided the service to those dependants before the motor accident. The insurer notes prior to the accident funding for care for the eldest son was provided through the NDIS scheme, noting We Love with Care were providing two hours of care each weekday morning and four hours of care in the afternoons along with four hours of care per day on weekends. The insurer considered the requirement of s 3.26(1)(a) was not satisfied.
[5] Bundle per PIC Directions p 52.
The insurer stated the request for additional care for attendant care service was not considered reasonable and necessary in the circumstance or did not relate to the injury resulting from the accident. The insurer concluded it was not responsible to fund additional carer hours.
On 20 April 2023 the insurer filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment and care dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or related to the injury caused by the motor accident for the purposes of section 3.24”.
The dispute under s 3.26 of the MAI Act is not a medical assessment matter. However, it is reviewable as a merit review matter under Schedule 2, cl 1(j) of the MAI Act. As it is not a medical assessment matter this dispute is not for review by this Panel.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[6]
[6] Section 7.20 of the MAI Act.
This dispute was assessed by Medical Assessor Alan Home who issued a certificate dated 22 March 2023.

TREATMENT AND CARE – STATUTORY PROVISIONS

Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a) The reasonable cost of treatment and care,
(b) Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c) If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.26(1) of the MAI Act refers to statutory benefits for loss of capacity to provide gratuitous domestic services. The relevant provisions are as follows:
“(1) An injured person is entitled to statutory benefits under this Division for the
reasonable expenses incurred after the motor accident in employing a person to
provide domestic services to the claimant's dependants, but only if--
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in this section--the claimant provided the services to those dependants before the motor accident, and
(b) the claimant's dependants were not (or will not be) capable of performing the
services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the claimant's injury,
the claimant would have provided the services to the claimant's dependants for at
least 6 hours per week and for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.”
Section 3.26(4) provides:
“(4) The provision of domestic services to an injured person's dependants as provided by this section constitutes the provision of treatment and care for the injured person for the purposes of this Division.”

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Alan Home assessed the claimant on 14 March 2023 and issued a certificate dated 22 March 2023.[7]
[7] Bundle per PIC Directions p 11.
The following treatment disputes were referred to Medical Assessor Home:
·        whether the physical injuries give rise to a need for past domestic assistance from the date of the accident to the date of the medical assessment relates to the injury caused by the motor accident;
·        whether 4 hours per fortnight of domestic assistance arising from the physical injuries from the date of the accident to the date of the medical assessment is reasonable and necessary in the circumstances;
·        whether the physical injuries give rise to a need for proposed domestic assistance from the date of the medical assessment and continuing for one year relates to the injury caused by the motor accident, and
·        whether 8 hours per day on weekdays and 6 hours per day on weekends for proposed domestic assistance arising from the physical injuries from the date of the medical assessment and continuing for one year is reasonable and necessary in the circumstances.
Medical Assessor Home reported intermittent neck pain, although he noted a good range of neck motion and no upper limb radicular complaints. He reported the main complaint was of constant mid back pain, in the low thoracic region at the site of the fractures. He noted occasional spasm in the lower back. He reported further pain about the right hip, exacerbated by prolonged walking, and pain in the right thigh associated with walking and crouching. Medical Assessor Home reported BTR had constant right ankle pain with a walking tolerance of 15 minutes limited by back, hip and right ankle pain. He noted she reported a feeling of unsteadiness and imbalance of the right hip.
Medical Assessor Home reported the claimant was independent for activities of self-care, with an estimated capacity to lift up to 3kg.
Medical Assessor Home concluded there was a requirement for assistance with heavy domestic chores such as mopping and low bathroom cleaning.
Medical Assessor Home made the following determinations:
(a) The following treatment and care relates to the injury caused by the accident:
(i)whether the physical injuries give rise to a need for past domestic assistance from the date of the accident to the date of the medical assessment, and
(ii)whether the physical injuries give rise to a need for proposed domestic assistance from date of the medical assessment and continuing for one year.
(b) The following treatment and care is referred back to the MAS (Medical Assessment Service) for assessment by an OT (occupational therapist):
(i)whether 4 hours per fortnight of domestic assistance arising from the physical injuries from the date of accident to the date of the medical assessment is reasonable and necessary in the circumstances, and
(ii)whether 8 hours per day on weekdays and 6 hours per day on weekends for proposed domestic assistance arising from the physical injuries from the date of the medical assessment and continuing for one year is reasonable and necessary.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of Medical Assessor Home on 20 April 2023 within 30 days of the date on which the certificate of Medical Assessor Home was made available to the parties.
On 29 May 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
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 new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.

The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission^[8]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[8] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[9]
[9] Section 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 and determines the proceedings and may determine the proceedings solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

TELECONFERENCE

On 20 February 2024 the Panel issued a Second Review Panel Report and Directions notifying the parties the matter was listed for a teleconference with the legal representatives of each party on 5 March 2024. The report also notified the parties a medical examination had been scheduled with Medical Assessor Gibson on 19 April 2024.
The report dated 20 February 2024 included the following paragraphs:
1.     “5.    The Panel notes the claimant sustained the following injuries in the accident on 24 March 2021:
·    fracture of the right femur;
·    fracture of the right sacra ala and of the superior pubic rami;
·    fracture of the right distal fibula;
·    anterior calcaneal process fracture;
·    fractures of the 1^st, 2^nd and 3^rd toes;
·    fracture of the navicular;
·    deep abrasions with full thickness skin loss to the left knee;
·    injury to the neck; and
·    injury to the back.
2.     6.     The Panel notes the claimant was still mobilising with crutches as of June 2022 and required crutches after undergoing surgery on 24 March 2022 to remove hardware and a trochanteric bursectomy and after undergoing a right ankle arthroscopy and lateral ligament surgery on 13 September 2022.
3.     7.     The Panel would like to address the following matters at the teleconference:
·to clarify the claim for care where Medical Assessor Home identified the claim as a need for domestic assistance of 4 hours per fortnight from the date of the accident to the date of the medical assessment and 52 hours per week from the date of the medical assessment and continuing for one year;
·to clarify whether it is the insurer’s position that the claimant has not required any domestic assistance and care since the accident;
·to clarify whether the insurer has paid for any domestic assistance since the accident and if so, how much assistance and during what periods;
·the claimant’s non-attendance for a second occasion at the scheduled medical examination;
·whether the parties have taken steps to file a merit review application in respect of the dispute under s 3.26 of the Motor Accident Injuries Act 2017:
·whether an application has been made to obtain an updated copy of the NDIS file noting the filed uploaded to the portal was furnished to the insurer on 16 September 2022 in response to a request dated 8 August 2022.”
8.     The matter was listed for teleconference on 5 March 2024 before Member McTegg on behalf of the Panel. Ms Karen Bulluss appeared for the insurer and Mr Andy Deng for the claimant.
9.     Following the teleconference, the Panel issued a Third Review Panel Report and Directions. That report included the following paragraphs:
4.‘3.      The purpose of the teleconference was to address the issues outlined in the Panel’s Second Review Report and Directions dated 20 February 2024.
5.4.      Both parties agreed the certificate of Assessor Home conflated the dispute as to child care and the dispute as to domestic assistance.
6.5.      Prior to the teleconference the insurer had uploaded to the portal submissions dated 1 March 2024. Those submissions set out details of the periods of paid domestic assistance and child care. Domestic assistance was paid by the insurer until 4 September 2023.
7.6.      Mr Deng stated the claim for past domestic assistance and child care was abandoned where BTR had not been in a financial position to pay for care once the assistance from the insurer ceased and where there is no entitlement under the Motor Accident Injuries Act, 2017 (MAI Act) to receive compensation for gratuitous care and assistance.
8.7.      The claim to be assessed is the current and future need for care. During the teleconference I provided Mr Deng with an opportunity to clarify his instructions with BTR. Mr Deng advised he was instructed the claim for future care was for both domestic assistance and child care for four hours per day or 28 hours per week.
9.8. Section 3.24 of the MAI Act governs the entitlement to statutory benefits for treatment and care.
10.9. Section 3.26 of the MAI Act creates an entitlement to recover statutory benefits for loss of capacity to provide gratuitous domestic services to dependents and subsection (4) states the provision of domestic services to an injured persons’ dependents constitutes the provision of treatment and care.
11.10. Section 3.24(2) provides:
12.‘No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.’
13.11. It was agreed in accordance with s 3.24(2) that the question of whether both domestic assistance and child care related to the injury resulting from the motor accident and whether it was reasonable and necessary were medical assessment matters under schedule 2 s 2(b) and the subject of the medical assessment.
14.12. However, it seems that a determination by way of medical assessment under s 3.24(2) does not finalise the dispute in relation to child care where schedule 2 s(1)(j) provides:
15.‘whether statutory benefits are payable under section 3.26 (Statutory benefits for loss of capacity to provide gratuitous domestic services), and the amount of statutory benefits so payable’
16.is a merit review matter.
17.13.     In other words, once the medical assessment has been finalised it will be necessary, in the event of dispute as to payment of statutory benefits for child care, for a merit review application to be filed to determine whether the statutory benefits are payable and the amount payable.
18.14. Mr Deng agreed to request a copy of the NDIS file pertaining to the claimant’s son BZO this week. However, that file will not be required for the medical assessment dispute but for any future merit review dispute under s 3.26 of the MAI Act.
19.15.     I discussed with Mr Deng the claimant’s non-attendance at the medical examinations. He advised BTR was apologetic about the recent non-attendance and he has undertaken to remind her of the scheduled appointment with Medical Assessor Gibson.
20.16.     The parties informed me there was agreement that the claimant was entitled to damages for non-economic loss.
21.17.     The insurer sought leave to rely upon a report of Dr Wallace. It was the opinion of Dr Wallace which established the claimant had sustained a greater than 10% whole person impairment. The claimant did not object to Dr Wallace’s report being considered in this assessment.
22.DIRECTIONS
23.18.     The claim for past care, both domestic and child care is abandoned.
24.19.     The claim is amended to claim future care, both domestic assistance and child care for four hours per day or 28 hours per week.
25.20.     Leave is granted to the insurer to upload to the portal and to rely upon the report of Dr Wallace.”

EVIDENCE
NDIS File

The file relates to the claimant’s son BZO. He is now eight years of age and was five years of age at the time of the accident.
BTR made a request to access the scheme for her son BZO on 30 July 2019. In a report dated 4 June 2019 Dr Gupta, paediatrician described the issues facing BZO as follows:
(a)    autistic spectrum disorder;
(b)    global developmental delay;
(c)    severe receptive and expressive language delay;
(d)    frequent tantrums/challenging behaviour, and
(e)    separation anxiety.
In a report dated 29 January 2021 Raymond Lee, speech pathologist reported BZO presented with a severe receptive and expressive language disorder as well as delayed speech and pragmatic stills.[11] His behaviour was described as unpredictable and excessively rough. Mr Lee reported BZO required a high level of one on one support with set tasks. He stated BZO required four hours of support everyday before and after school to enable him to transition to kindergarten and cope with starting school.
[11] NDIS file p 90.
BZO enrolled in [redacted] in a supported class room. An overview of BZO’s functioning as of 9 February 2021 includes the following impairments:
·        requires individual support for his speech and language skills;
·        when asked to follow instructions only able to follow one step;
·        he will not engage in conversation with others;
·        when he asks for something if his mother does not respond he begins to scream;
·        requires high level of one on one support with set tasks;
·        BZO requires prompting with road safety;
·        BZO wears a nappy during the day and night, he has no interest in toilet training and is scared of the toilet;
·        BZO requires support to dress including support with buttons and zippers, with socks and shoes;
·        BZO doesn’t like bathing routine, he screams and pushes his mother hand when she washes his hair;
·        BZO can drink out of an open cup but will spill the liquid everywhere; requires assistance with eating and drinking;
·        BZO sleeps with his mother in the same bed;
·        behaviour can be unpredictable and excessively rough with his mother, carers and therapists;
·        BZO is sensory to sound and doesn’t like songs being played;
·        BZO prefers to play on his own, does not understand pack away, turn taking or wait, and
·        attention and focus difficulties which can be challenging.
In an occupational therapy report of Bernadette Beary dated 6 March 2022 she reported BZO demonstrated extreme difficulties with sensory processing and with regulation of his emotions noting he presented with frequent meltdowns and adverse behaviours impacting his ability to participate in everyday tasks.[12] Ms Beary concluded BZO required urgent and ongoing therapy to assist him to integrate into his community and participate in meaningful tasks. She reported as he becomes stronger his mother (the claimant) will not be able to safely manage his emotional outbursts, verbal and sometimes physical aggression.
[12] NIDS file p 527.
In a decision dated 15 June 2022 NDIS refused a request to consider four hours per day for a support worker to assist with self-care tasks, appointments and social community access on the basis it was not the responsibility of the NDIS to replace parental responsibility or dependence on support workers to provide care and supervision where the accident which resulted in ongoing neck and back pain impacted the claimant’s ability to provide care to BZO.[13]
[13] NDIS file p 210.
Referring to the request for five hours to assist with BZO’s transportation, the decision notes the NDIS will not fund day to day living costs associated with caring for children including transport costs, as parents are expected to meet their child’s everyday transport requirements. The assistance which was confirmed was for 1.4 hours per day for a support worker to assist with self-care tasks, appointments and social community access for BZO.[14]

Treating medical evidence
[14] NDIS file p 604.

BTR was conveyed by ambulance and was an inpatient at St George Hospital from
24 March 2021 until 30 March 2021. She underwent surgery on 25 March 2021 to insert a right femoral nail to treat the proximal right femur fracture.
On 16 April 2021 Dr Anthony Keeley reviewed the claimant after undergoing intra-medullary nailing of the right femur and non-operative treatment of the right sacral ala, right calcaneus anterior process, right 2nd and 3rd toe proximal phalanx and 1st distal phalanx fractures. He noted she was non-weight bearing on the right leg with crutches.[15]
[15] PIC application re care p 24.
BTR presented to the Emergency Department on 25 April 2021 when she overbalanced on the right leg. No further acute injury was demonstrated.
On 16 June 2021 Dr Kelley reported the claimant was three months post operative treatment. He also noted she had a fracture of the navicular.[16] There was some Trendelenburg lurch on the right. He also reported intermittent pain in her knee radiating upwards to her hip, pain in the right low back and pain in her right ankle. She was doing physiotherapy and hydrotherapy three days a week. Dr Keeley noted the claimant continued to walk with an antalgic gait with a crutch for support.
[16] PIC application re care p 26.
On 19 January 2021 Dr Damodaran reported axial back and neck pain due to the compression fractures had not improved even with physiotherapy over nine months. He recommended review for pain management.
On 24 March 2022 Dr Della Torre removed the right femoral intra-medullary nail/screws and performed a trochanteric bursectomy. On 4 April 2022 he reported the claimant was walking with a single crutch, altered gait and he recommended physiotherapy to maximise recovery.
On 25 August 2022 Lauren Bailey physiotherapist reported concerns regarding the claimant’s inconsistency in presentation and movement, self-restriction, protective guarding, bracing and fear avoidance behaviours.

Dr Alice Chang, orthopaedic surgeon

Dr Chang reviewed the claimant on 26 October 2021.[17] She reported the X-ray and MRI of the lower leg, ankle and foot demonstrated subcutaneous tissue scarring at the area of skin indentation in the distal calf posteriorly. The Achilles tendon was intact. There were 1^st distal phalanx, 2^nd and 3^rd proximal phalanx fractures which appeared united. The 2^nd and 3^rd proximal phalanx fractures appeared malunited but the proximal interphalangeal joint surfaces were relatively congruent. She also reported a nondisplaced calcaneal anterior process fracture which was healing and a healing lateral malleolus fracture distal to the level of the syndesmosis. She noted the lateral ankle ligaments appeared intact. There was extensive bone contusion involving all the bones in the midfoot. She also reported an os trigonum with surrounding oedema.
[17] PIC application re care p 64.
Dr Chang reported BTR had extensive right foot osseous injury due to the accident. She recommended continued physiotherapy.
On 8 February 2022 Dr Chang reported the claimant continued to experience right foot and ankle pain, her orthotic was uncomfortable and causing her to invert her ankle.
On 19 July 2022 Dr Chang reported the claimant’s main complaint regarding her right foot and ankle was the feeling of instability.[18] She recommended she undergo right ankle arthroscopy and lateral ligament reconstructions.
[18] PIC application re care p 71.
On 13 September 2022 the claimant underwent right ankle arthroscopy and lateral ligament reconstruction. On 27 September 2022 Dr Chang reported BTR would require eight hours of daily assistance with looking after her children for the next two weeks whilst she was still on crutches with reduced daily assistance thereafter whilst mobilising in a CAM boot.

Dr Paul Della Torre, hip, knee, trauma and reconstructive orthopaedic surgeon

On 21 December 2021 Dr Della Torre reported BTR continued to have significant pain in the right sacroiliac joint and lower back, pain over the right greater trochanter and right groin.[19]
[19] PIC application re care p 66.
Dr Della Torre reported there was significant hardware irritation of the femoral nail with iliotibial band (ITB) friction syndrome. He recommended removal of the hardware.
On 22 February 2022 Dr Della Torre reported BTR was booked for surgery on
[20] Bundle per PIC directions p 47.
24 March 2022.[20] She would be an inpatient for one to two nights, on crutches for five to seven days and would have difficulty taking care of her children by herself in the first one to two weeks. She would be unable to drive for two to three weeks. The insurer organised 24 hour care for both children whilst she was hospitalised.
On 4 April 2022 Dr Della Torre reviewed BTR. He reported she was walking with a single crutch, had significant difficulty taking care of her children and required support at home. He prescribed Endone and referred her for physiotherapy.
Dr Della Torre reviewed BTR on 17 April 2023. He reported she had developed worsening mid and lower thoracic back pain and continued to have significant lower lumbar back pain with a heavy feeling down the right leg on standing for long periods and walking up stairs.[21]
[21] PIC application re care p 76.

Dr Damodaran, neurosurgeon

On 19 January 2022 Dr Damodaran reported BTR’s back and neck pain had not improved.[22] He considered the imaging reassuring and suggested she required chronic pain management with a multidisciplinary approach. He referred BTR to Dr Jane Standen.
[22] Bundle per PIC directions p 46.

Zeinab Allaw, of Life Guidance Psychology Practice

BTR consulted Ms Allaw, initially on 17 March 2022 when she reported symptoms since the accident of severe low mood, lack of concentration, low self-esteem, difficulty sleeping, fatigue, anxiety, low energy, feelings of sadness and hopelessness and lack of motivation.[23] She also reported the claimant suffered from extreme and constant physical pain. Ms Allaw diagnosed post-traumatic stress disorder.
[23] PIC application re care p 68.
In her report dated 14 June 2022 Ms Allaw stated the claimant did not have any support persons in her life to assist with daily household duties or attending to the needs of her children. She had been receiving insurance support in the form of a support worker who provided six hours of basic, daily care and assistance. BTR reported the support had been removed recently and she is required to engage in daily duties that are outside her physical capacity and have regressed her recovery. Ms Allaw recommended BTR be provided with daily care and assistance.

Benchmark Rehabilitation

Belinda Stabb, occupational therapist (OT) undertook an assessment of the claimant’s capacity for activities of daily living (ADL’s) on 21 February 2022.[24] BTR was a single parent of a son aged 5 and a son aged 6. The eldest son had been diagnosed with Autism and has additional needs. He attended the [redacted]. The younger son was in kindergarten at [redacted]. Ms Stabb was of the view the younger son would be able to follow verbal instructions for showering, dressing and feeding himself and that the provision of a care worker for the younger child was unreasonable.
[24] Bundle per PIC directions p 27.
At that time approval was in place for a cleaner to attend four hours per fortnight to vacuum, mop, clean the bathroom and glass doors. Whilst care workers were completing evening meal preparation it was considered BTR should have the capacity to complete simple meal preparation using provided equipment and pacing strategies. Care workers were also completing laundry tasks, but it was considered she would be able to move laundry around the home if she was provided with a laundry trolley. It was considered she required assistance to remove or replace bed linen. It was suggested she use online shopping.

Ms Stabb concluded BTR had the capacity to complete ADL’s but recommended the ongoing arrangement for cleaning on a fortnightly basis.

Imaging

CT brain and CT cervical spine dated 25 March 2021:
“No acute intracranial or cervical spine traumatic sequelae”.[25]
[25] PIC application re care p 32.
CT chest abdomen and pelvis dated 25 March 2021:
“Definite undisplaced fracture of the T8 vertebral body and lucency through the vertebral bodies of the T10 – L1 which may represent undisplaced fractures or nutrient foramen. Vertically orientated fracture of the right sacroiliac with no sacroiliac joint or public symphysis diastasis. Trace right pneumothorax. No other traumatic sequelae seen within the chest, abdomen or pelvis.”[26]
[26] PIC application re care p 34.
X-ray right femur, right pelvis, right foot, and right heel dated 16 June 2021:
“There is [sic] been a fracture of the midshaft of the right femur immobilised b the intra medullary rod and several screws.
Early bone union is seen with callus and periosteal new bone formation but the fracture line is still fairly well defined.
The alignments are satisfactory.
The pelvic bones are intact and show no further fracture or subluxation.
X-ray of the right foot
There have been fractures of the distal phalanx of the big toe at the base and fractures of the necks of the second and third proximal phalanges. The fractures are in good alignment and the fracture lines are still defined.
The appears to be a linear fracture through the mid shaft of the navicular.
There is irregularity of the anterior break of the calcaneus? Fracture at that site.”[27]

Medico-legal assessments

[27] PIC application re care p 23.

Ms Allaw, psychologist, 9 June 2022

She reported the claimant does not have a support person who can assist with daily household duties or attends the needs of her children. She had received support in the form of a support worker to provide six hours of basis care and assistance which had been recently removed. She was required to engage in strenuous physical activities to support herself and her children.

Dr John Davis, occupational physician

Dr Davis assessed the claimant and provided a report dated 23 November 2021.[28] At that time he reported the following:
[28] PIC application re care p 39.
·        complaints of thoraco-lumbar pain which is constant and “it always feels stiff”;
·        she cannot sit or stand for long periods;
·        she has pain at the junction of the proximal third and two thirds of the right thigh;
·        a clicking sensation in the right inguinal region;
·        left knee pain;
·        right knee pain (reportedly of later onset);
·        right mid foot pain as well as pain in the toes;
·        exacerbation with any bending, lifting, squatting and when using stairs she lads with left foot and walks crabwise;
·        her sleep is uncomfortable;
·        she resides in a 3-bedroom ground floor unit with two bathrooms, living, dining and kitchen. The floors are wood/tiles with carpeted bedrooms, and
·        she has a daily carer for six hours per day from Monday to Friday and four hours per day on the weekend. She also has a cleaner provided every 2 weeks for four hours. She is extremely limited in her ability to perform any domestic duties.
In relation to domestic assistance Dr Davis reported there was a continuing need, including child care, for the current care provided by the insurer. He reported she will require less assistance in the future but considered her current level would be required over at least the next six months. In relation to work capacity he opined she would be able to perform limited activity in the future.
Dr Davis reviewed the claimant and provided a report dated 25 May 2023.[29] He reported
BTR was the driver of a vehicle which was T-boned on the offside of the vehicle in
[29] PIC application re care p 79.
April 2022. She reported only minor transient increased difficulty. She also reported a fall on 1 January 2023 as a result of a spasm in her back. She suffered a haematoma which resolved.
Dr Davis reported ongoing pain from the neck to the lower spine, occasional numbness over the left buttock. Pain in the right inguinal region, the right knee, in the right midfoot, ankle and toes. Her injuries are aggravated by kneeling, squatting, walking on uneven ground, using stairs, heavy lifting, bending, using force or maintaining static posture.
He reported the provision of care was withdrawn by the insurer and she is forced to perform the duties herself as well as care for her 6 and 7 year old children. He reported she experienced aggravation of symptoms after domestic activities.
Dr Davis felt the prognosis was guarded due to ongoing symptoms, reduced functional capacity as well as her psychological response to injury.
Dr Davis reported BTR resided in a two bedroom, two bathroom unit with open plan living. He recommended 14 hours of paid commercial domestic assistance per week for the next three years including assistance with her children after which it may be reduced to eight hours per week.
However, noting the likely development of osteoarthritic changes to the right foot and also degenerative changes resulting from the spinal fractures in the thoracolumbar region he thought the prognosis was for increasing pain and disability and reduced functional capacity. He recommended the need for domestic assistance would increase by age 45 to 10 to 12 hours per week.

Dr Raymond Wallace, orthopaedic surgeon

Dr Wallace provide a report dated 24 January 2024 after assessing the claimant at the request of the insurer.[30]
[30] AALD p 2.
He reported intermittent aching pain at the C5, C6 and C7 spinous processes made worse on reaching out or on forward flexion. She complained of intermittent mild weakness at the bilateral upper limbs and stiffness of the cervical spine.
He reported constant aching pain at the midline from T6 to T10 and stiffness at the thoracic spine. He also reported paraesthesia at the anterior aspect of the left thigh and weakness at her right leg. He reported a complaint of intermitting aching pain at the medial aspect of the right groin and a constant aching pain at the right ankle aggravated by activity. She reported intermittent giving way at the joint and stiffness.
Dr Wallace reported the claimant’s sleep was disturbed by pain and she had difficulty driving a motor vehicle for more than 20 minutes. He reported she had difficulty with housework tasks involving cooking and cleaning. She has been unable to resume playing tennis, running, or walking for exercise.
Dr Wallace reported the pelvic and right foot conditions had resolved. He recommended she undertake an unsupervised home exercise programme concentrating on mobilisation and strengthening and cease her use of Tramadol narcotic analgesic medication. He considered she had a poor prognosis for further recovery of function despite treatment.
Dr Wallace concluded BTR was fit to resume her full time pre-injury duties as an administration officer. Dr Wallace assessed a 12% whole person impairment caused by the accident. He did not consider she required any domestic and/or personal assistance.

Correspondence from We love with Care

On 20 May 2022 Ms Sally Najem general manager of We love with Care sent an email to the claimant as follows:
“Hi BTR,
Further to our previous conversation, there must have been a misunderstanding between Belinda and I.
I had previously spoken to Belinda from Benchmark Rehab and she was asking about BZO’s NDIS supports.
I advised her that BZO had no NDIS funding and we were not providing any support and regardless, NDIS funding is for his disability needs, not anyone else.
I’m unsure as to why she would say otherwise.
I am more than happy to speak to her in regards to this and clarify anything further.”[31]
[31] PIC application re care p 55.
Mr Deng Lawyer sent an email to Sally Najem on 20 March 2022 in which he stated:
“Dear Sally
Thank you for your email below.
Benchmark Rehab has also reported in its attached report “Sally Najem, General Manager of We Love With Care, reported to Benchmark Rehab that prior to the subject MBA, they were providing 2 hours of care each weekday morning and 4 hours of care in the afternoons along with 4 hours of care per day on weekends.”
I have been instructed by BTR this level of care was provided only after the 24.03.21 motor vehicle accident, and not prior.
Can you please confirm?”
In an email of 20 May 2022 Ms Najem replied:
“Hi Andy,
Yes that’s correct.
I’m assuming that’s where the confusion is”.

Surveillance footage

The Procare report dated 30 January 2023 is accompanied by surveillance footage of 10, 11, and 12 January 2023.[32]The claimant is seen to drive a vehicle, exit the vehicle, and walk with no apparent restrictions.
[32] AALD p 3.
The Procare report dated 6 February 2023 is accompanied by surveillance footage of 10, 11, and 12 January 2023 and seems to be identical to the report dated 30 January 2023 although the photographs are in colour.[33]
[33] AALD p 11.
The Procare report dated 27 April 2023 is accompanied by surveillance footage of 18 and
[34] AALD p 19.
19 April 2023.[34] On 18 April 2023 the claimant was observed to attend a medical centre with her two children before driving to Westfield Parramatta where she was observed shopping for 67 minutes. No obvious restrictions were observed. On 19 April 2023 the claimant first attended a car wash with her children before driving to Chullora Marketplace where she was observed to push a small trolley which is only lightly laden with both hands. She is also seen to and, bend from the waist and load items into her vehicle. No obvious restrictions were apparent.
The Procare report dated 2 June 2023 is accompanied by surveillance footage of 22, 23, 24, 25, 26, 27 and 28 May 2023.[35] The claimant is observed driving and walking with no obvious restrictions. On 22 May 2023 the claimant can be seen to raise her right hand straight above her head to close the tailgate of a white BMW vehicle. The claimant is seen to collect, carry and place in her car drycleaning items. On 23 May 2023 the claimant is seen to bend over to pick something up and on 24 May 2023 she is seen to bend over to pick up a small dog. On
26 May 2023 the claimant became engaged in a verbal altercation with a delivery truck who had parked her vehicle in. She approached the driver’s side door, stepped onto the doorstep with her right foot, pulled herself up as she held onto the half opened window and leant through the driver’s side window before running into the convenience store the driver had entered. Again, the claimant is seen to move with ease and with no restriction. On
27 May 2023 the claimant is seen to bend from the waist as she leant into the drivers footwell of the BMW vehicle before picking up a pizza box from the ground.

SUBMISSIONS

[35] AALD p 35.

Insurer’s submissions

The insurer provided submissions dated 11 August 2022. The insurer notes the claimant was a 30 year old woman at the time of the accident who was caring for her two children aged between four and six years. The eldest child was in receipt of NDIS funding for care 38 hours per week.
Only those submissions relevant to the question of current and future care have been addressed where the claim for past care has now been abandoned.
The insurer relies on the Benchmark Rehab report dated 4 April 2022 where the following was recorded:
“The youngest child, aged 5, has commenced kindergarten this year. BTR has denied he has any developmental disability, therefore, based on accepted developmental milestones (ACEQA- Australian Children's Education and Care Quality Authority) Benchmark Rehab is making the following assumptions to his capabilities:
(i)dresses and undresses with little help;
(ii)toilets himself;
(iii)develops ability to toilet train at night;
(iv)feeds self with minimum spills;
(v)walks and runs relatively smoothly;
(vi)answers simple questions; and
(vii)follows simple instructions.”
Based on these, it can be presumed that he would be able to follow verbal instructions for showering/cleaning routine and drying himself. He would be able to dress himself in school uniform, after school clothes and pyjamas. He would be able to feed himself and follow instruction for any other personal hygiene task.
The insurer submits that the claimant’s youngest child is of an age where he can complete basic daily tasks independently or with direct verbal promoting. There is no evidence on file that the claimant herself is incapable of performing direct verbal prompting to her son.
The insurer submits the request for care in the form of eight hours per day Monday to Friday and six hours on weekend was not causally related to the accident but due to pre-existing disabilities.
The insurer provided submissions dated 20 April 2023.[36]
[36] Bundle per PIC directions p 1.
The insurer’s application for review is limited to Medical Assessor Home’s first determination, that is, that the past domestic assistance and proposed domestic assistance is related to the accident.
The insurer submits the request for care services for the claimant’s two children was unrelated to any injury suffered in the accident.

Claimant’s submissions

The claimant provided submissions which are undated addressing the question to be determined by the President’s delegate. There are no submissions addressing the substantive dispute.

THE EXAMINATION

BTR attended the examination by Medical Assessor Gibson on 19 April 2024. She brought no imaging studies with her for the appointment. She said she had driven from her home in Birrong and had parked on a side street. She has a disability parking permit (for herself). She was accompanied by her 14-year-old brother who was to look after her sons BZO, age 8 and BVX, age 7.

Past medical and personal history

BTR said that she had sustained a soft tissue injury to her left hip in November 2020 when she was hit by a car whilst crossing a road. She said that she had some cosmetic surgery to the area as she developed a hard lump in the region of the injury. There were no other issues arising from this accident and no ongoing symptoms.
There was no other medical, surgical, accident or injury history of relevance.
Prior to the accident, BTR had been working on a full-time basis as an office all-rounder for a kitchen cabinet maker. She said that she had a good relationship with her manager and was able to work from home as required, and generally restricted her time away from home to school hours.

History of the subject accident

BTR had been riding a motorbike in a group along Southern Cross Drive in Mascot on
24 March 2021. She was appropriately attired and wearing a helmet. She was in a group of riders, and they were heading back to Brighton Le Sands. She said that one member of the group, a younger man, had been riding erratically, and fell off his bike. She collided with the bike, fell off her bike and was hit by another motorbike.
She was transferred via ambulance after the accident to St George Hospital. The ambulance record from the day of the accident noted she had been found supine on the road with obvious deformity of the right leg post falling off her motorcycle. Her Glasgow Coma Score was 15. There was no neck pain. She was given morphine for pain relief.
At the hospital, BTR was found to have proximal right femoral fracture, right sacroiliac fracture, deep abrasions with full-thickness skin loss to the left knee, an undisplaced T8 vertebral body fracture and possibly T10-L1 undisplaced vertebral fractures. She was reviewed by the neurosurgery team, and it was felt the spinal fractures were stable. Her cervical spine was cleared clinically and radiologically.
BTR underwent operative reduction and internal fixation of the femoral fracture on
25 March 2021. She was discharged on 1 April 2021.
BTR was reviewed by Dr Anthony Keeley on 16 April 2021. He noted there had been intramedullary nailing of the right femur and non-operative treatment of the right sacral ala, right calcaneus anterior process right 2nd and 3rd toe, proximal phalanx and 1st distal phalanx fractures. At that stage, she was non-weightbearing on the right leg with crutches.
BTR returned to the emergency department on 25 April 2021 after she over-balanced on her right leg, but there has been no further injury arising from this incident.
On 16 June 2021, Dr Keeley had noted that X-rays showed healing fractures.
BTR was also reviewed by Dr Della Torre who organised for a cortisone injection to the right iliopsoas tendon. He had noted there was hardware irritation at the femoral, now with ITB friction syndrome. There was further surgery to remove the right femoral intramedullary nail and screws and perform trochanteric bursectomy on 24 March 2022.
On 30 August 2022, orthopaedic surgeon, Dr Alice Chang recommended right ankle arthroscopy and lateral ligament reconstruction. This was performed on 13 September 2022. Dr Chang advised she would be in plaster for two weeks, restricted to touch, weightbearing for a minimum of two weeks postop and then a Cam walking boot for four weeks and that her recovery could take up to 12 months.
BTR was also referred for pain management review.

Current complaints

BTR described constant mid and upper lumbar pain rated at 5-6/10 severity after taking analgesic medications.
There is pain in the right medial thigh which is tender to touch. She has difficulty crossing her legs and her symptoms worsen with activities such as prolonged walking.
BTR reported she felt pain over the right ankle most of the time, within the joint and laterally. There had been some improvement with ankle stability since Dr Chang's surgery, but not much impact on the pain.
BTR reported left-sided neck and left trapezial pain present most of the time.

Current treatment

BTR takes tramadol 200mg twice daily and she has been using this for about 18 months. She takes 300mg Lyrica twice daily which was commenced within the last 12 months. She takes Panadol Osteo three times a day. She takes Sertraline 100mg daily and Endep 25mg at night.
When asked about non-prescribed drugs, BTR said she had at times used a medication prescribed for ADHD.
There were no physical therapies currently as BTR said these had been ceased by the insurer in August/September of last year.
BTR visited a pain specialist at Sydney Pain Management Centre, Dr Vahid Mohabbati. She saw him in late 2023. She said she was prescribed methadone which I understood had been in order to get her off the opiates.
BTR visits her general practitioner Dr Saba at A2Z Medical Centre in Lakemba on a weekly to fortnightly basis.
BTR last saw Dr Della Torre six months ago.
BTR last saw neurosurgeon Dr Damodaran last year, but no further treatment was recommended.
BTR said her general practitioner has referred her to neurosurgeon Dr Mark Davies at St George Hospital.
She was referred to a psychiatrist, but this was not approved by the insurer, so she has not attended.
BTR had been seeing psychologist Dr Zeinab Allaw at Life Guidance Psychology Practice.

Activities and restrictions

Prior to the accident, BTR was living with her two sons in a three-bedroom apartment in Greenacre. Eight months ago, she moved into a four-bedroom, two-bathroom, double-storey house in Birrong. She said they had moved there as she needed more space for the boys. She said the children's father is no longer in their life, as he has addiction issues. She has been a single parent since 2016.
BTR said she is receiving no domestic assistance. She receives no home help. Her mother and two brothers live in Rydalmere, some 15-20 minutes away, but they provide no assistance apart from occasional babysitting by her brother.
Her younger son is fit and well.
Her eldest son, BZO was diagnosed with autism five years ago. She has approved for NDIS assistance for her 8-year-old son BZO due to his autism.
When asked about the NDIS, she said that she was provided funds for treatment of her son and also towards a support worker. She said the support worker was funded for one hour a week which was “not really worth it” at all due to the limited time so instead she contracted to have the carer attend four hours a day once a month and no carer subsequently until the next funding allocation.

When asked about BZO’s care needs, BTR said he now weighs 58kg. He requires constant supervision. He regularly has tantrums and throws himself on to the floor and she has to try and get him up. He requires assistance with personal care. He is incontinent of urine and faeces. She said he wet his bed last night, so she had to remove all the sheets.
He attends school Monday to Friday. He is picked up from their home at 8.30am and returns at 2.30pm. She said at 2.30pm they drive over to the school to pick up her other son.
In relation to domestic chores, she said she cooks simple meals. She does small amounts of vacuuming. She does the shopping as she has “no other choice”. She does the laundry and transfers washed clothes to the dryer. She does not hang them on a line or an airer.
She said when driving she needs to move about to relieve her spinal symptoms. She is independent in self-care.

Physical examination

BTR was 161cm tall and weighed 54kg. She looked very fatigued. She was wearing casual clothing, a ‘Sloppy Joe’ and long trousers. She was well groomed otherwise with careful makeup and long nails.
She had a normal gait. When asked to walk on heels and toes, there was some weakness due to right ankle pain.
On examination of the neck, there was full normal range of movement. There was some tenderness diffusely over the cervical spine in the midline and extending to the trapezius bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. She had some small scars over the dorsum of both hands. There was no muscle wasting. There was normal power, sensation, and reflexes.
On examination of both shoulders, movements were near normal with 10 degrees restriction in forward flexion. The remaining upper limb joints were normal.
On examination of the back, there was tenderness over the mid thoracic and upper lumbar spine. Flexion and extension were half normal, lateral flexion and rotation were normal range bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there was no muscle wasting. There was a 5cm reddish scar over the lateral malleolus. There was scarring over the front of the left knee, the medial aspect of the left thigh and the right outer thigh. BTR had a long red scar over the right lateral buttock and right thigh measuring 19cm. There was normal lower limb neurology.
Ankle movements were normal apart from restricted right ankle eversion.

PANEL DETERMINATION

BTR is a 31-year-old woman who was involved in a significant motor vehicle accident as a motorbike rider on 24 March 2021. She had sustained fractured right femur, right sacral ala. There had been fracture of the 1st digital phalanx, 2nd and 3rd proximal phalanx of the right foot and non-displaced calcaneal anterior process fracture, lateral malleolus fracture.
On assessment by Medical Assessor Gibson, there was ongoing mid and low back pain, intermittent right medial thigh discomfort and right ankle and left-sided neck pain. There was some limitation of spinal movements and some weakness in the right leg secondary to the right ankle pain.
The Panel reviewed the surveillance imaging. Whilst this demonstrates good general mobility in walking and lifting of light shopping, it did not demonstrate her capacity in performing heavier household chores or heavier physical activities in general. BTR was aware of the surveillance footage which was discussed with her.

Whether future child care relates to the injury caused by the accident

Whilst the Panel is aware of the difficulties experienced by BTR in caring for her son BZO, the need for care does not relate to the injury caused by the accident but to his diagnosed autism which has been recognised by the NDIS. BZO would have required constant supervision and assistance with personal care in any event.

Whether future child care is reasonable and necessary in the circumstances

The Panel accepts that future child care will be required for BZO on an ongoing basis in the circumstances having regard to the extent of his disability as a result of autism. However, the Panel is of the view this is the responsibility of the NDIS.

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

The Panel was only required to revisit the dispute referred to Medical Assessor Home for assessment. However, at the preliminary conference on 5 March 2024 the claimant advised the claim for past care, both domestic and childcare, was abandoned.
The Panel notes the claim for future care referred to Medical Assessor Home was as follows:
· whether the physical injuries give rise to a need for proposed domestic assistance from the date of the medical assessment and continuing for one year relates to the injury caused by the motor accident, and
· whether 8 hours per day on weekday and 6 hours per day on weekends for proposed domestic assistance arising from the physical injuries from the date of the medical assessment and continuing for one year is reasonable and necessary in the circumstances.
However, at the preliminary conference on 5 March 2024 the claim for future care, both domestic assistance and child care was amended to claim four hours per day or 28 hours per week. The Panel considers this means it is required to assess the following:
· whether the physical injuries give rise to a need for proposed domestic assistance from the date of the medical assessment and continuing for one year relates to the injury caused by the motor accident, and
· whether 4 hours per day or 28 hours per week for proposed domestic assistance arising from the physical injuries from the date of the medical assessment and continuing for one year is reasonable and necessary in the circumstances.
The claimant sustained serious fractures in the accident. She reported constant mid and upper lumbar spine pain, pain in the right medial thigh and pain over the right ankle. She continues to take Tramadol, Lyrica and Panadol Osteo three times a day.
Whilst Dr Wallace concluded BTR did not require domestic assistance he also reported she alleged she had difficulty with household tasks and her sleep was disturbed by pain.
Dr Wallace also reported neck pain on forward flexion, aching of the thoracic spine, an ache at the right ankle aggravated by activity and weakness of the right leg. Dr Wallace thought there was a poor prognosis for further recovery of function.
BTR is a single mother with sole responsibility for two children living in a four bedroom two storey house.
The Panel also notes there is no dispute the claimant has sustained a whole person impairment greater than 10%.
The Panel is satisfied on the balance of probabilities that BTR continues to require assistance with heavier domestic tasks such as vacuuming, cleaning the bathroom, mopping and moving furniture.
The Panel finds the physical injuries give rise to a need for domestic assistance from the date of the medical assessment and continuing for one year relating to the injury caused by the accident.

Whether future domestic assistance is reasonable and necessary in the circumstances

The Panel notes Medical Assessor Home did not undertake an assessment of whether the proposed domestic assistance from the date of the medical assessment and continuing for one year was reasonable and necessary in the circumstances. That dispute was referred by Medical Assessor Home back to the Medical Assessment Service for assessment by an OT.
Where the Panel was undertaking a review of the assessment, albeit it by way of a new assessment of all matters with which the medical assessment is concerned, the Panel considers it appropriate to refer the dispute as to whether future domestic assistance is reasonable and necessary in the circumstances back to the Medical Assessment Service for assessment by an OT.
Accordingly, the Panel refers the following treatment and care dispute back to the Medical Assessment Service for assessment by an OT:
· whether 4 hours per day or 28 hours per week for proposed domestic assistance arising from the physical injuries from the date of the medical assessment and continuing for one year is reasonable and necessary in the circumstances.

[2024] NSWPICMP 325

23 May 2024