QBE Insurance (Australia) Limited v Suttie
[2024] NSWPICMP 245
•22 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Suttie [2024] NSWPICMP 245 |
| CLAIMANT: | Madeleine Suttie |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Lauren Alach |
| MEDICAL ASSESSOR: | Dawn Piebenga |
| DATE OF DECISION: | 22 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 21 September 2022 when the claimant had come to a stop on the Sturt highway prefatory to making a right hand turn into the driveway of her farming property; medical dispute as to necessary and reasonable treatment and care; causation; claim for costs of expenses incurred for maintenance of claimant’s farming property; whether such expenses fall within definition of domestic assistance under Guidelines; Held – certificate of Medical Assessor Middleton as to causation confirmed; certificate as to reasonable and necessary domestic care for closed period revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel confirms the certificate dated 26 June 2023 issued by Medical Assessor Lisa Middleton. CERTIFICATE 1. The Review Panel revokes the certificate dated 26 June 2023 and issues a new certificate determining that the following treatment and care: · farm work by Jim Leahy at $3,259.90 plus one day per week IS NOT REASONABLE AND NECESSARY. |
STATEMENT OF REASONS
INTRODUCTION
Madeleine Suttie (the claimant) was injured in a motor accident on 21 September 2022. The claimant had come to a stop on the Sturt highway prefatory to making a right hand turn into the driveway of her farming property. The claimant’s vehicle was struck from behind by a
B-double truck travelling at considerable speed. The claimant reports that, as a result of the impact, she hit her head on the steering wheel, rear-view mirror and then on the head rest. There was a brief loss of consciousness. Ambulance and police officers attended the scene. The claimant had to be cut from her vehicle as the driver’s door could not be opened. The claimant was conveyed to the emergency department at Wagga Base Hospital and then discharged into the care of her husband, who is a medical practitioner.QBE (the insurer) indemnified the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages and statutory compensation benefits under the Motor Accident Injuries Act2017 (the MAI Act). The insurer refused payments beyond 26 weeks on the basis that the claimant suffered minor (now “threshold”) injuries for the purposes of the MAI Act.
There is a dispute between the claimant and the insurer about:
(a) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2 s 2(b) of the MAI Act, and
(b) whether treatment or care provided to an injured person will improve the recovery of the injured person under Schedule 2 s 2(c) of the MAI Act.
The following treatment and/or care disputes were referred by the Commission for assessment:
(a) whether the request for past domestic assistance up to the 17 November 2022 relates to the injury caused by the motor accident, and
(b) whether the request for past domestic assistance up to 17 November 2022 is reasonable and necessary in the circumstances.
ASSESSMENT UNDER REVIEW
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment which is the subject of the review was conducted by Medical Assessor Lisa Middleton on 15 June 2023. Assessor Middleton certified on 26 June 2023 as follows:
The following treatment and care:
DOES RELATE TO THE INJURY CAUSED and IS REASONABLE AND NECESSARY in the circumstances.
- whether the request for past domestic assistance up to the 17/11/2022 relates to the injury caused by the motor accident; and
- whether the request for past domestic assistance up to 17/11/2022 is reasonable and necessary in the circumstances.
Although there is an issue between the parties as to whether or not the treatment or care provided will improve the claimant’s recovery, Assessor Middleton was not required to address that issue.
The disputed request for domestic assistance up to 17 November 2022 was formulated as follows:
· farm work by Jim Leahy at $3,259.90 plus one day per week;
· cleaning by Annie Heffernan at $300 per week for 10 weeks ($3,000), and
· ironing: $113.
The insurer subsequently paid the amounts claimed for cleaning and ironing. The only remaining dispute related to the amounts charged by Jim Leahy for farming work at the rural property owned by the claimant and her husband.
STATUTORY PROVISIONS
Rules 127 to 130 of the Personal Injury Commission Rule 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act[TR1] . A review panel determines how it conducts and determines the proceedings and may determine the proceedings based solely upon the written application.[1]
[1] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[2]
[2] Section 7.26(6) of the MAI Act.
THE REVIEW
The application for referral of the medical assessment of Medical Assessor Middleton was made by the insurer on 14 July 2023, within 28 days after the parties were issued with the original certificate of the medical assessment, for which review is sought.
The insurer submitted that Medical Assessor Middleton’s decision is incorrect in a material respect.
The insurer noted that the services the subject of the dispute are as follows:
farm work by Jim Leahy at $3,259.90 plus one day per week.
Cleaning services provided by Amie Heffernan at $300 per week for 10 weeks ($3,000).
One-off ironing services performed on 8 November 2022 ($113).
As to the farming work performed by Jim Leahy, the insurer repeated its previous submissions that the farm work previously was undertaken by the claimant in the course of her employment. As such, it is submitted, they are business expenses, which are excluded from the definition of “treatment and care” in s 1.4 of the MAI Act and are not compensable expenses under s 3.24 of the MAI Act.
The insurer further submitted that the Medical Assessor failed to address that submission and failed to provided reasons why that submission was not accepted.
In its previous submissions to Medical Assessor Middleton, and in its reasons upon internal review, the insurer submitted that the funding of cleaning services is not reasonable and necessary in the circumstances, and that the ironing services had not been verified. The reason provided, for refusal of the cleaning services, was that no additional expense had been incurred. Whereby pre-accident the claimant paid Amie Heffernan for child minding services, post-accident she was paid the same hours but for cleaning services. Additionally, the request for three-day per week cleaning services exceeded the recommendations for domestic assistance, and did not meet all the requirements, under Table 5.1 and s 5.13 of the Motor Accident Guidelines. Those submissions were not repeated in the insurer’s review application.
The insurer’s review application was opposed by the claimant. As to whether the request for past domestic assistance up to 17 November 2022 is reasonable and necessary in the circumstances, the claimant firstly submitted that, whilst her injury may have been determined at “minor”, as it was a closed head insult, the actual functional, psychological and social impacts may have been far greater.
The claimant said there is no merit in the insurer’s submission that the Medical Assessor failed to address the insurer’s submissions, and that the application should be dismissed.
In relation to farming duties undertaken by the claimant, prior to the accident it was submitted that the claimant worked on the family farm and was not paid for undertaking those farming tasks. Detailed submissions were made concerning the claimant’s inability to operate the extensive watering system servicing the family home.
In relation to those farming duties previously performed by the claimant and the work performed by Mr Leahy, it was submitted that the Medical Assessor had stated her path of reasoning clearly.
President’s delegate Goinaz Mojtahedi issued a Determination of an Application for Review of a Medical Assessment on 18 September 2023, which stated the satisfaction of the President’s delegate that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s failure to address the submissions made by the insurer that the farming services performed by Mr Leahy relate to expenses incurred in the claimant’s business, and therefore relates to expenses incurred in the claimant’s employment, and does not meet the definition of “treatment and care” pursuant to s 1.4 of the MAI Act. Accordingly, the application was accepted and referred to the Review Panel.
The parties’ submissions proceeded on the basis that the injury caused by the motor accident is a threshold injury for the purposes of the MAI Act, to which s 5.13 (Limits to domestic services and home maintenance) and Table 5.1 of the Motor Accident Guidelines (the Guidelines) apply. In response to a query by the Review Panel, the parties subsequently acknowledged that the claimant had suffered a non-threshold injury.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) claimant’s submissions in reply to the insurer’s application for review (previously summarised).
(b) Certificate of capacity of Dr Victoria Edwards dated 28 September 2022. Diagnosis is mild brain injury. The doctor comments that the claimant is an academic and consultant who has required paid assistance with household tasks (cleaning, gardening).
(c) Referral by Dr Gracy Gouda to Dr Marcus Smith dated 20 October 2022 with neck and back pain for physiotherapy.
(d) Referral by Dr Gracy Gouda to Dr Martin Jude for opinion regarding amnesia, insomnia and flashbacks.
(e) Certificate of capacity by Dr Gracy Gouda dated 20 October 2022. Diagnosis is mild brain injury. Lifting restriction of no more than 10 kilograms. To avoid pushing/pulling, bending/twisting/squatting. The doctor comments that the claimant has required paid assistance with household tasks (cleaning, gardening).
(f) Tax invoice of James Leahy dated 20 October 2022.
(g) Radiology report of Dr Vimali Palaniappan dated 1 November 2022.
CT LUMBAR SPINE – no evidence of lumbar spine bony injury. Minor degenerative changes at L5/S1 level. Insignificant disc bulgers at the two lumber levels. A few small right renal calculi. Tender vertebral bodies at L3 and L4 post MBA? Fractured nasal bone post-motor vehicle accident.
(a) Report of MRI brain, cervical spine and thoracic spine performed on 23 September 2022 by Dr Stephenson.
(b) History recorded is loss of consciousness for one minute following the motor accident. Hit by a semi-trailer from behind at 110 kilometres per hour. CT does not show a spinal fracture. Now severe headache, severe neck pain, paraesthesia, brain fog, amnesia.
(c) The brain in CSF pathways have a normal appearance, no intracranial haemorrhage or brain contusion is shown. No skull lesion identified. No bone injury is shown in the cervical or thoracic spines…….. mild cervical low doses and a mild thoracic kyphosis. There is no paravertebral haematoma ……at C5/C6 and C6/C7. There is reduced disc hydration, mildly reduced disc height at C5/C6, associated with posterior disc bulgers and a small focal central posterior disc protrusion.
(d) Certificate of capacity by Dr Gracy Gouda dated 16 November 2022. Diagnosis is mild brain injury. The doctor comments that the claimant is suffering from post brain-concussion, amnesia with lower back and neck. MRI cervical spine showed C5/C6 and C6/C7 compression. CT lumbosacral spine showed some degenerative changes and some insignificant disc bulgers. Voltaren ceased, pain is tolerable now…… analgesia and amitriptyline for post-traumatic flashbacks and insomnia. Dr Jude, neurologist, referred the claimant to the Brain Injury Unit. Severe anxiety and stress, no depression.
(e) NSW police report.
(f) Report to Dr Jude by Associate Professor Ian Baguley, rehabilitation medicine physician, dated 8 February 2023.
The patient was referred for a review of her symptoms following a mild traumatic brain injury. Professor Baguley opines that the claimant’s previous extremely high level of functioning is part of her current problem, in that she is still trying to do far more than an average person would be able to attempt. While she had made efforts to decrease her cognitive load and stress levels, she needs to re-evaluate this further and make other adjustments. She is having neuro psychometric testing on 28 February 2023.
(g) Certificate of capacity by Dr Gouda dated 13 February 2023.
Diagnosis is post motor vehicle accicent brain injury (persistent amnesia) plus neck and back pain. Dr comments that patient is still suffering from post-brain concussion amnesia with lower back and neck pain post motor vehicle accicent. Further assistance needed with home support and more assistance with amnesia recovery through the Brain Injury Unit referral to Dr Sabaz, clinical neuropsychologist, to be approved urgently.
(h) Certificate of capacity by Dr Gouda dated 3 April 2023.
In similar terms to Dr Gouda’s previous certificate.
(i) Report by Dr Blagoje Kuljic, consultant psychiatrist, dated 8 April 2023.
Detailed history of the accident, physical and psychiatric symptoms and treatment post-accident. Diagnosis is post-traumatic stress disorder with impairments regarding self-care and personal hygiene, social and recreational activities, travel, social functioning/relationships, concentration/persistence/phase, and employability/adaptation. The ongoing symptoms and functional impairments make her disabled for work from a psychiatric perspective. Dr Kuljic assesses 19% whole person impairment.
(j) Living Skills Assessment and Recommendations Report of Carla Crichton, occupational therapist/rehabilitation coordinator and Lauren Webber, speech pathologist/rehabilitation coordinator, South West Brain Injury Rehabilitation Service dated 14 June 2023.
(k) Funding is supported for personal care/domestic activities/meal preparation/community access/gardening/lawns/outdoor farm management.
The insurer relied upon the following material:
(a) insurer’s submissions seeking a review of the certificate of Medical Assessor Middleton dated 14 July 2023 (previously summarised).
(b) Insurer’s submissions (treatment dispute) dated 10 March 2023.
The insurer maintained the following:
(i)that the farming expenses do not fall within the definition of treatment and care;
(ii)that the alleged payment for ironing services has not been verified, and
(iii)that the request for reimbursement for domestic services are not reasonable and necessary in the circumstances.
As stated previously, it is only the farming expenses that remain in dispute.
(c) Report of WorkFocus Home and Activities of Daily Living Assessment dated 5 January 2023 prepared by Deborah McKinney, occupational therapist.
Under the heading Summary and Recommendations, Ms McKinney said as follows:
“Ms Suttie is a 42 years old person who was referred to WorkFocus Australia by QBE. Ms Suttie sustained mild brain injury when involved in a car accident. Ms Suttie described being stationary and waiting to turn into her driveway from a busy highway when a truck collided with her vehicle, from behind, driving at a speed of 100 kilometres/hr. Ms Suttie advised since the accident she had experienced significant memory issues impacting her day-to-day activities. From review of documentation, client report and presentation at the assessment, the following recommendations have been made:
oLong handled Grabber x 2 (indoors and outdoors) trolley
oLawn maintenance (fortnightly) and farm hand work (weekly) to maintain the property. WorkFocus Australia recommends 4 hours per fortnight for lawnmowing and 8 hours per week for farm work for a total of 12 weeks.”
(d) Report by Associate Professor Ian Baguley dated 8 February 2023 (previously summarised).
Having regard to the contents of Ms McKinney’s report, it seems that the insurer does not dispute causation.
RE-EXAMINATION
Report from the Medical Assessor:
“In a message from the insurer in response to the Review Panel Report and Directions dated 15 December 2023, the insurer, as the applicant, asked the Panel to limit their review to the farming services performed by Mr Jim Leahy and whether farming services are excluded from the definition of treatment of care.
The current motor accident guidelines indicate that the insurer should support the injured person to optimise their recovery, through early and appropriate treatment and rehabilitation. Therefore, The Panel acknowledges that payment for domestic assistance was reasonable at least up to 17 November 2022, the first two months of Ms Suttie’s recovery which is the subject of this review. Based on her diagnosis with a mild brain injury, it seems reasonable that she wouldn’t have been able to return to any of her pre-injury home maintenance tasks or farm duties during that early recovery period.
The Panel accepts that Ms Suttie has a non-threshold injury, therefore the limits to domestic assistance for someone with a threshold injury do not apply.The Panel notes that the tasks listed in Ms Leahy’s invoice dated 20 October 2022 are outside or the role of a handyman or support worker, therefore are not considered domestic assistance. They involve working with an electric fencing system, digging trenches to find pipes, and replacing sections of pipes and a water pump. Those tasks should all be done by licenced contractors such as electrician, plumber, or water and irrigation specialist such as Jame’s Leahy. Therefore, they are not considered domestic assistance as reasonable under the motor accidents guidelines.
There is nothing in the guidelines about limits for domestic assistance for claimants with non-threshold injuries. In providing a reasonable estimate for the time needed to replace Ms Suttie’s pre-accident role in home and property maintenance, between the date of her accident and 17 November 2022, The Panel refers to the document Guidance on the provision of support workers for adults with spinal cord injuries (ICARE 2017). That document estimates the amount of assistance with home and garden maintenance for someone with a complete spinal injury, who can’t contribute at all to home maintenance, as 2 hours per week. That is for someone who lives in a house to maintain their home and garden. The Panel considers that it is reasonable that someone living on a large rural property, such as Ms Suttie, would have a greater need. But that would only be to maintain her home and the block / fencing directly surrounding it. Maintaining the property beyond that is not considered reasonable domestic assistance. Nor is maintaining the home and property for farming services.The Review Panel estimates that it could take 3 hours per week to maintain Ms Suttie’s large rural block, with a deduction of 4.0 hours per fortnight for lawn mowing as assessed as necessary by Ms Middleton. That leaves an estimated 1.0 hour per week as reasonable for maintenance of Ms Suttie’s home and the block directly surrounding it.
Tasks that the Panel consider were reasonable to replace Ms Suttie’s pre-injury contribution to maintaining her home and garden, which would fall under past treatment and care up until 17 November 2022, include:·Checking and clearing gutters to ensure that rainwater system functions properly.
·Checking pipes and taps around the house and performing minor repairs if needed.
·Checking and making minor repairs to the fence surrounding the hours, except where an electrician is required in the case of an electric fence.
·Other minor repairs and maintenance, such as removing debris from around the house that could present a bush fire risk.
The Review Panel acknowledges that the Medical Assessors’ above comments, in relation to the domestic services that were needed to replace the claimant’s pre-accident role in home and property maintenance, between the date of her accident and 17 November 2022, are outside the terms of the referral. Nevertheless, they are proffered to the parties in the hope that they might obviate any further dispute.”
FINDINGS
In the Review Panel Report and Directions issued on 15 December 2023, the Review Panel required submissions in relation to whether or not a further examination of the claimant was necessary, or required, given the plethora of material before the Review Panel and the fact that the dispute is limited to care provided up to 17 November 2022. The insurer indicated that it did not require a re-examination. The claimant did not respond. In those circumstances, the Review Panel finds that further examination of the claimant was not necessary.
For the reasons stated in the parties’ material, which have been summarised, particularly, the fact that the claimant has suffered a minor brain injury, which is uncontested, the Review Panel finds that the disputed treatment and care (as formulated above), does relate to the injury caused by the accident.
As the tasks performed by Jim Leahy and itemised in his tax invoice dated 20 October 2022 do not fall within the definition of domestic assistance under the Guidelines, they are not considered necessary and reasonable.
CONCLUSIONS
For the above reasons, the Review Panel confirms the certificate issued by Medical Assessor Middleton, on 26 June 2023, as to whether the request for past domestic assistance up to the 17 November 2022 relates to the injury caused by the motor accident.
The Review Panel revokes the certificate issued by Medical Assessor Middleton, on 26 June 2023, as to whether the past domestic care for that same period is reasonable and necessary treatment and care in the circumstances.
The new certificate appears at the commencement of these reasons.
[TR1]Write in full in first instance
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