Schembri v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Schembri v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 200
CLAIMANT:	Christene Schembri
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Paul Curtin
DATE OF DECISION:	9 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of decision of Medical Assessor Cameron dated 27 February 2022; review with respect to treatment and care; causation; whether physical injuries give rise to a need for domestic assistance from the date of the motor vehicle accident to the date of assessment and thereafter for the remainder of the claimant’s life; claimant was a passenger in a car and an accent occurred on 11 October 2017; claimant suffered both physical disabilities of a soft tissue nature and psychiatric disabilities; no evidence provided of the extent of the need of the claimant/the full extent of activities affected and the hours attributed to providing domestic assistance for those activities affected; Held – the Panel was satisfied that the claimant did serve injuries giving rise to a need for domestic assistance but only for a period of six hours per week the first six months following the accident; the Panel was not satisfied that the claimant had a need for domestic assistance beyond six months after the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the decision of Medical Assessor Cameron dated 27 February 2022. 2. Whether there is a need for the following treatment and/or care, the Panel determines: 2.1 Domestic assistance - causation - whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is causally related to the injury sustained in the subject accident. (i) The Panel agrees that the claimant has suffered a physical injury which is causally related to the accident and which gives rise to a need for domestic assistance for a limited period of time. 2.2 Domestic assistance - reasonable and necessary - whether zero to seven hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is reasonable and necessary in relation to the injury sustained in the subject accident. (i) The Panel agrees that the injuries arising from the accident and to 11 April 2018 give rise to a need for the provision of domestic assistance for six hours per week forsix months following the accident. 2.3 Domestic assistance - causation - whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident. (i) The Panel is not satisfied the claimant has a need for the provision of domestic assistance as a result of injuries causally related to the accident from the date of this assessment for the remainder of the claimant’s life expectancy. 2.4 Domestic assistance - reasonable and necessary - whether zero to four hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained. (i) The Panel does not find that the claimant is in need of domestic assistance of zero to four hours per week as a result of injuries suffered by the claimant as a result of the accident.

STATEMENT OF REASONS

THE REVIEW

The insurer has sought a review of the certificate of Medical Assessor Cameron (the Medical Assessor) dated 27 February 2022.
There is a dispute between the claimant and the insurer about:
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances under s 58(1)(a) of the Motor Accidents Compensation Act 1999 (the Act), and
(b) whether any such treatment relates to the injury caused by the motor accident under s 58(1)(b) of the Act.
The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment on the application of the insurer:
a)    Whether all physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and for the remainder of the claimant’s life expectancy, and whether this assistance is causally related to the injury sustained in the subject accident.
b)    Whether zero to six hours per week of domestic assistance arising from the physical injuries caused by the motor vehicle accident and relating to assistance from the date of the Medical Assessor’s assessment and for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident.
c)    Whether all physical injuries give rise to a need for domestic assistance from the date of the accident to the date of the Medical Assessor’s assessment and whether this assistance is causally related to the injury sustained in the subject accident.
d)    Whether zero to twenty hours per week of domestic assistance arising from the physical injuries caused by the motor vehicle accident and relating to assistance, from the date of the accident to the date of the Medical Assessor’s assessment, is reasonable and necessary in relation to the injury sustained in the subject accident.

THE ACCIDENT

The accident occurred on 11 October 2017. The claimant was a passenger in a car driven by her son.
The accident is reported in the police report as being a minor traffic crash. It was reported after the accident on 27 October 2017. The claimant’s car was stationary, waiting at traffic control lights. A collision occurred, and one of the cars involved collided with the claimant’s car. There were four cars involved in the collision. Airbags were deployed in some but not all cars.
The car in which the claimant was travelling had to be towed away after the accident. The claimant’s husband drove the claimant and her son home from the accident scene.

THE INSURER’S SUBMISSIONS

The insurer recited that the claimant makes the following claim for past domestic assistance:
(a) 20 hours per week for the first six months following the accident, and
(b) 14 hours per week thereafter.
The insurer says that a claim is also made for future domestic assistance in the order of six hours per week for the remainder of the claimant's life expectancy.
The insurer disputes the alleged need for all claimed past and future domestic assistance.
The insurer noted that the claimant is a housewife and part-time sales executive who alleges injuries to her neck, left shoulder, right hand and fingers, right wrist and upper arm together with psychological sequelae as a result of a motor vehicle accident on
11 October 2017.
The insurer further noted that the claimant lives in a four-bedroom house with her husband and two children. At the time of the accident, the insurer says that the claimant was committed to home duties. She has since gained part-time employment as a Sales Executive.
The insurer relies on the following expert:
a) Dr Anthony Smith, orthopaedic surgeon (report dated 6 March 2019) said:
"There would have been no inability for her to look after herself and she would have required no particular domestic assistance and does not require any of these assistances now.
At the time of writing, her problem is there is no occupational, domestic or recreation activity that she can engage in at the risk of exacerbating/aggravating her osteoarthritic cervical spine."
With respect to the medico-legal report relied upon by the claimant, from Dr Conrad, general surgeon, the insurer says that he is not qualified to assess the extent of any need for care caused by the accident.
The insurer says that the claimant has failed to particularise her pre-accident participation in domestic duties and how these allegedly changed following the accident, such that she required initially 20 hours of assistance and then 14 hours thereafter.
The insurer submits that the claimant has failed to particularise the extent of her alleged functional incapacity due to accident-related injuries.
The insurer says that the claimant has failed to particularise whether she will have any ongoing disability or functional incapacity and what reasonable care needs (if any) are required into the future as a result of any ongoing disability or functional incapacity.
The insurer submits that it is appropriate for the Medical Assessment Service to determine the claimant's entitlement to care arising from the motor vehicle accident-related injuries.

CLAIMANT’S SUBMISSIONS

The claimant disputes the Medical Assessor’s findings in relation to future domestic assistance on the grounds that the Medical Assessor has made factually contradictory findings that cannot objectively support his conclusion that the claimant’s need for future domestic assistance does not arise out of the injuries and disabilities she sustained in the subject accident.
The claimant has disputed that there is no dispute in relation to the Medical Assessor’s findings in relation to the need for past domestic assistance.
It is submitted by the claimant that the Medical Assessor failed to identify certain restrictions to her activities of daily life and with those restrictions, the impact of these on the claimant’s ability to perform domestic chores, and the extent of any ongoing assistance required in relation to this.
In support of this the claimant says the Medical Assessor recorded the following at page 4 of his report:
“… Mrs Schembri said that her symptoms have plateaued. She continues to have multiple symptoms including neck pain, headache and some right arm pain. She said she is uncomfortable while at work. She said there were other symptoms. Some of these were psychological with ‘anxiety.’ She said that on occasions her memory was difficult and there was stuttering. She said there were problems with writing ...”
The claimant says that the Medical Assessor then recorded the following at pages 4 and 5:
“… At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all plane … Numbness was reported approximately in the C8 dermatome … At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes …
… Mrs Schembri was consistent in her presentation …” (claimant’s emphasis)
The claimant says that the Medical Assessor then recorded the following at page 6:
“…Imaging studies were available as follows:
·MRI cervical spine and brain dated 28 August 2020 showed C5/6 disc abnormalities on the right side …”
The claimant submits that most significantly, the Medical Assessor recorded the following diagnosis after confirming that the claimant demonstrated ongoing losses of range of movement and related symptoms primarily in the cervical and lumbar spines as demonstrated above, with objective radiological corroboration of injury in the cervical spine:
“…In the motor vehicle crash on 10 October 2017, Mrs Schembri sustained a soft tissue injury to her cervical spine. Based on the available information, this caused symptoms and restrictions in daily life. Some restrictions persist …” (claimant’s emphasis)
The claimant says that noting the above diagnoses and the acknowledgement that the claimant continues to have continuing restrictions, it is submitted that the Medical Assessor has failed to identify those restrictions, the current and ongoing impact of these on the claimant’s ability to perform domestic chores, and the extent of any ongoing assistance required in relation to these.
The claimant submits that the ultimate finding of the Medical Assessor, which undergirds his conclusion that the claimant no longer has any need for ongoing domestic assistance, is recorded at page 6 of his certificate, which provides, “… She has demonstrated an adequate level of functioning despite ongoing symptoms …”. The claimant says this falls foul of the test of causation within the Act and constitutes a wholly inappropriate basis for his conclusions.
On this basis, the claimant submits that the above findings are contradictory in that despite the claimant’s demonstrated ongoing symptoms and restrictions, findings have been made by the Medical Assessor which provides that the claimant will require no assistance for the balance of her life expectancy on the basis that she “... has demonstrated an adequate level of functioning despite ongoing symptoms…”.
The claimant submits that the above reasoning is inadequate and fails to consider the real and relevant considerations of the claimant performing her domestic tasks with pain, performing those tasks out of necessity and also fails to assess or consider the claimant’s prognosis and how and to what extent her injuries and impairment levels are likely to fluctuate in the future and their effect on the claimant’s ongoing need for assistance.
The claimant relies on the medical evidence annexed to her Treatment Dispute Reply Form, which she says demonstrates the extent and effects of her injuries and disabilities to date and which provide poor prognoses in terms of any future recovery.
It is submitted that the claimant’s ongoing “need” for domestic assistance arises out of the fact that the claimant’s demonstrable ongoing and permanent restrictions continue to cause her pain and discomfort, and will continue to do so when she performs domestic chores of a heavy and/or repetitive nature.
The claimant says that the pain and discomfort arise out of the injuries and disabilities sustained by the claimant in the subject accident and has and will continue to affect the claimant in relation to the performance of her domestic chores, as it has from the date of the accident to the date of the subject report. The claimant says that this is a fact that has been acknowledged and certified by the Medical Assessor and is supported by the medical evidence relied upon by the claimant.
Finally, the claimant says in summary that it is submitted that for the reasons outlined above, the Medical Assessor’s ultimate findings in relation to the claimant’s need for future domestic assistance are primarily reliant on irrelevant considerations and contradictory findings which are contained within the Medical Assessment Report and Certificate.
Concerning the care dispute application made by the insurer, the claimant provided submissions to that application, in reply.
The claimant said by way of background information that prior to the accident, she would attend to most of the domestic household duties including cooking, meal preparation, cleaning, washing, hanging and packing away washing, washing and packing dishes, ironing, mopping, sweeping, vacuuming, dusting, cleaning kitchen, bathroom and laundry, and other household duties. Prior to the accident, the claimant’s husband would only attend to washing the car and mowing the lawn.
The claimant says that since the date of the accident, she has been unable to attend to domestic household duties. The claimant says that initially, after the accident, she was not able to attend to any of the domestic duties and relied on her husband and daughter to attend to these.
The claimant submits that, gradually, she has been able to attend to some of the minor duties around the home, resulting in a gradual decrease of care around the home from 20 hours per week to 14 hours per week. The claimant says that this remains the extent of attending to domestic duties.
The claimant says that she remains unfit for attending to the heavier domestic duties or any of the domestic duties for prolonged periods as she will exacerbate pain and discomfort.
The claimant has served a medical report from Dr Peter Conrad – General Surgeon, dated 29 January 2019, which states:
“Should her husband and 20-year-old daughter not be able to assist with the heavier part of housework … she might need about six hours per week of Home Care Assistance.”
The claimant acknowledges that whilst Dr Conrad is not permitted to comment on the extent of any need for care caused by the accident, she says that he is entitled to comment on the general need for care required by the claimant due to the injuries sustained in the accident.

THE MEDICAL EVIDENCE

The claimant obtained a report from Dr Bertucen, psychiatrist, dated 8 January 2019. He said the claimant claimed to be less motivated to maintain her home to the same extent prior to the accident. Dr Bertucen said that while a certain component was due to right shoulder/arm impairment, there was undoubtedly a component of psychological demotivation and anxiety. Dr Bertucen said that the claimant would benefit from home-based occupational therapy assessment to further evaluate the nature/extent of the assistance she may require.
The claimant also obtained a medico-legal report from Dr Giblin dated
29 January 2019.
Dr Giblin noted that the claimant was not taken to the hospital following the accident but was followed up by her family doctor over the next couple of days after the accident for neck pain with radiation into the right upper limb.
The claimant said that she had an appointment with Professor Sheridan, a neurosurgeon, the following week.
The claimant complained that her neck bothers her if she has to look up for a prolonged period of time. She has problems with quick rotary movements, and craning activities such as reading or writing also aggravate her condition. The claimant said that if she is on the computer or watching television for an extended period of time, she gets discomfort.
The claimant also obtained a medico-legal report from Dr Conrad, general surgeon, dated 14 January 2019. Dr Conrad also referred to the claimant seeing Professor Sheridan the following month.
Regarding home care assistance, Dr Conrad said that should the claimant’s husband and then 20-year-old daughter is not able to assist her, with the heavier part of housework (he did not say what this was) as well as home and garden maintenance, then she might need about six hours per week of home care maintenance.
The claimant’s general practitioner (GP) Dr Morris, provided a report of
9 November 2018. This referred to restricted capacity for home duties, however, what those home duties were was not articulated.
Professor Sheridan provided reports for 20 February 2019, 12 April 2019 and
11 May 2020. He discussed persisting neck pain, right arm pain, paraesthesia, numbness and right occipital neuralgia.
Several rehabilitation reports from Peak Health Centre go to the physiotherapy rehabilitation of the claimant. These evidenced continuing pain and discomfort, including post treatment therapy.
There is a report from Dr Malik, psychiatrist, dated 12 March 2019. Apart from this information, the report is illegible.
Medical Assessor Cameron provided a certificate dated 27 February 2022.
The Medical Assessor found that all physical injuries of the claimant give rise to a need for domestic assistance from the date of the accident to the date of the Medical Assessment Service (Medical Assessors) assessment. However, the Medical Assessor found that all physical injuries giving rise to a need for domestic assistance from the date of his Medical Assessor’s assessment and the remainder of the claimant’s life expectancy do not relate to the injury caused by the accident.
The Medical Assessor found the following treatment:
“0 – 20 hours per week of domestic assistance arising from the physical injuries caused by the motor vehicle accident and relating to assistance, from the date of the accident to the date of the Medical Assessors assessment will be determined by the occupational therapist.”

The following treatment:
“0 – 6 hours per week of domestic assistance arising from the physical injuries caused by the motor vehicle accident and relating to assistance, from the date of the Medical Assessors assessment and for the remainder of the claimant’s life expectancy is not reasonable and necessary in the circumstances.”
The Medical Assessor reported that the claimant said that her symptoms had plateaued. She continued to have multiple symptoms, including neck pain, headache and some right arm pain. She said she was uncomfortable while at work.
She said there were other symptoms. Some of these were psychological with “anxiety”. She said that on occasions, her memory was difficult, and there was stuttering. She said there were problems with writing.
The Medical Assessor said that in the motor vehicle crash on 10 October 2017, the claimant sustained a soft tissue injury to her cervical spine. Based on the available information, this caused symptoms and restrictions in daily life.
Some restrictions persisted. The claimant, however, has been able to gain employment and assist her family at home.
The Medical Assessor said that causation had been established for initial domestic assistance but not ongoing domestic assistance because there was an injury sustained in the subject motor vehicle crash that caused reduced abilities to complete daily activities that could require limited domestic assistance.
With regard to treatment and care and whether this was reasonable and necessary, the Medical Assessor said that with reference to the domestic assistance after the motor vehicle crash and prior to his assessment, this would be assessed by an occupational therapist appointed by the Commission. This has not occurred and it is not understood by the Panel to be occurring.
With reference to the domestic assistance after his assessment, the Medical Assessor said that domestic assistance was not reasonable and necessary because the claimant’s recovery was sufficient to manage without ongoing domestic assistance. The Medical Assessor said that the claimant had demonstrated an adequate level of functioning despite ongoing symptoms.
A regional bone scan with SPECT/CT of the cervical spine of 20 August 2020 showed discovertebral degenerative arthritis at the C5/6 level of the cervical spine. There was mild arthropathy in the facet joints on the right side at the CT/3 and C5/6 levels.
An MRI scan of 25 January 2018 showed a small left paracentral disc protrusion at C5/6, minimally indenting the left ventral hemi cord without causing canal stenosis. There was no cord oedema or myelomalacia. There are no additional disc protrusions, no disc bulges or additional sites or contact.
An MRI of the cervical spine of 26 February 2019 showed a left paracentral disc protrusion and commented that there has been some progression when compared to the previous examination.
An MRI scan of 28 August 2020 of the cervical spine reported a C5/6 disc protrusion with mild cord compression and no definite nerve root impingement.
Clinical notes of Dr Morris of 28 April 2020 record that the claimant was trying to re-educate to re-enter the workforce, secure a job and undertake computer work training. She was struggling to drive with arm and neck pain which was said to be significant after short periods of writing and typing, which led to poor concentration.
For the insurer, a report has been provided by Dr Smith, orthopaedic surgeon, of
6 March 2019.
Dr Smith reported that the claimant sustained soft tissue injuries to her cervical spine. She described flare-ups with activity which had continued through to the time of examination.
He said that the two MRI scans demonstrated pre-existing extensive degenerative disease in her cervical spine, which was slightly more marked at the C5/6 level and elsewhere. He reported some increased uptake at C5/6 in the bone scan. Dr Smith said it would appear to him that the claimant sustained an aggravation to her pre-existing generative disease in the cervical spine and that the symptoms are coming primarily from the C5/6 level and, to a lesser extent, C6/7 level.
Dr Smith said in his opinion the claimant had recovered and that she was having episodic exacerbations to previous asymptomatic cervical generative disease from time to time with various activities of daily living.
Dr Smith reported that he could not find anything objectively wrong with the claimant on clinical examination. He said that the slight restriction in the range of motion of the neck in all directions was unremarkable. He also said that weakness in the right upper limb was unphysiological. He said that there was no organic illness that could produce that pattern of weakness.
Dr Smith observed that shoulder elevation on the right was weak. Neck rotation to the right was weak. Dr Smith said that shoulder elevation and neck rotation are performed by the trapezius muscles and the sternomastoid muscles, respectively. Dr Smith went on to say that these muscles are innervated by the 11^th cranial nerve, which exits the skull directly by its own foreign behind the ear. He said that it penetrates and supplies the sternomastoid muscle, then crosses the anterior triangle of the neck to penetrate and supply trapezius muscle. That structure was not involved in the motor vehicle accident. Neck rotation to the right, which was weak, is performed by the left sternomastoid muscle.
With respect to activities of daily living, Dr Smith said that there would be no inability for the claimant to look after herself. He said that she would have required no particular domestic assistance and does not require any assistance as at the time of his report. Said that the claimant is capable of driving herself and can engage in normal recreational and social activities.
Dr Smith said that at the time of the report, there was no occupational, domestic or recreational activity that she could engage in at the risk of exacerbating/aggravating her osteoarthritic cervical spine. Dr Smith had suggested ways of treating her pre-existing neck arthritis but emphasised that this was not consequent directly to the accident, which he said only caused an initial exacerbation/aggravation which lasted perhaps one, two or three months. He said that her current symptoms were consequent to exacerbation/aggravation to her cervical osteoarthritis which was occurring from time to time with various activities of daily living.
The claimant was examined on behalf of the Panel by Medical Assessor Moloney. His report follows.

“MEDICAL EXAMINATION
Mrs Schembri attended the medical suites at the Personal Injury Commission on January 11, 2023. She was unaccompanied.
Pre-accident history
Mrs Schembri stated that she was in good general health prior to the accident and was unemployed but undertook all household duties. She lives with her husband and 2 adult children. She stated there had been no previous injuries of those assessed today.
History of motor accident
Mrs Schembri was a front seat passenger in a car driven by her son whilst he was learning to drive. They were stationary and hit on the driver’s side by a car that failed to stop. She was wearing a seatbelt at the time, but airbags were not deployed. She states that at the time of the accident, she had grabbed the steering wheel with her right arm, and the other driver collided with several other cars. She was able to get out of the car and was driven home by her husband. The police and ambulance attended the scene of the accident but did not treat her. Her car was towed away and was later written off.
Subsequent history and treatment
Mrs Schembri states that at the time of the accident, she felt shocked with a severe headache and attended the medical centre at Cecil Hills as well as her chiropractor. Later on, she consulted her regular GP at Horsley Park, who organised physiotherapy and continued chiropractic treatment. There was slight improvement after this treatment, but she has had recurrent flare-ups. She has also been diagnosed with PTSD/anxiety/chronic pain syndrome and has been treated by a psychologist and psychiatrist.
Her GP referred her to Dr Sheridan, a neurosurgeon who organised cervical cortisone injections, which gave a brief benefit for up to 2 months. He later recommended a surgical approach but she stated she is too anxious to consider this at present.
There have been no further accidents since the car accident in October 2017.
Current symptoms
At present, there is persistent neck pain associated with stiffness and frequent headaches as well as occipital neuralgia. Headaches frequently turn into a migraine event associated with aura. She gets intermittent numbness in the 4^th and 5^th fingers of the right hand, and pain radiates down the posterior right arm. The right arm fatigues easily, especially with writing or computer work. She is able to drive but states that reversing is difficult and only drives short distances. She is unable to jog but walks slowly and is limited by pain in the right arm. The left arm is asymptomatic, and prior to the accident, she was diagnosed with a ganglion on the left wrist, which occasionally gets sore.
Mrs Schembri is working in sales/marketing for a homebuilder, and this is a permanent part-time job for 16 – 24 hours per week. She does some limited housework, but the husband or daughter does most of this at present.
She has a disturbed sleep pattern and often wakes with nightmares, palpitations or pain.
Current treatment
Mrs Schembri takes medication for hypertension and was previously on an antidepressant which she stopped due to side effects. She takes Panadol when needed and a natural herbal medication. No manual therapy is being undertaken at present, although she does some home stretches.
Clinical examination
Mrs Schembri walked into my room with a normal gait and sat comfortably but appeared anxious with a depressed affect during the interview. She stated she is right-handed with a height of 160 cm and weighs 71 kg.
Cervical spine
On testing, range of movement, flexion/extension, side bending, and rotation were all 80% of the expected range with no asymmetry. On palpation, there was mild tenderness in the trapezius muscle bilaterally. No guarding or spasm was noted in the cervical musculature.
On neurological examination, the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference the upper arms 26 cm bilaterally (10 cm above the olecranon process) and at the maximum circumference of the upper forearms 24 cm bilaterally.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent, and on passive movement, no crepitus was detected. There was no tenderness over the acromioclavicular joints but tenderness over the right scalene muscles on palpation. Active movements were measured using a goniometer and repeated. There was a slight reduction in flexion and abduction of the right shoulder, which was limited by shoulder pain.

Shoulder Movements
Active ROM Measured

RIGHT
Active ROM Measured
LEFT

Flexion 160° 180°

Extension 50° 60°

Adduction 50° 50°

Abduction 160° 180°

Internal Rotation 90° 90°

External Rotation 90° 90°
There was a full pain-free range of movement of both elbows and wrists. There was a positive Tinel’s sign at the right cubital tunnel (over the groove of the medial epicondyle of the right elbow), which causes a sensation of discomfort over the ulnar nerve distribution but on examination no sensory changes were noted prior to this. No muscle wasting was apparent in its distribution of the ulnar nerve.
There were no lumbar symptoms, and Mr Schembri walked with a normal gait with a normal range of movement and no neurological signs in the lower limbs.
Domestic assistance
Mrs Schembri states that she did all the household duties prior to the accident. She still does all the cooking but has reverted to a simpler menu than previously and occasionally orders takeaway. Her husband looks after the vegetable patch, which she used to do previously. She loads the washing machine, but the children put this on the clothesline and remove it. She does limited ironing and is limited by right arm pain. She states that her husband does the vacuuming and sweeping.
She gets tired easily and is not as fit as previously, which is associated with some weight gain.
There is persistent symptoms of PTSD, but no medications are being taken at present. She avoids being a passenger in a car as this makes her very anxious and has stress associated with her son, who she states has mental health issues.”

The Panel adopts the report of Medical Assessor Moloney.

PANEL CONSIDERATIONS

The insurer requested particulars of the claimant’s claim by letter on 6 March 2020. The claimant’s solicitor’s responded by letter dated 20 May 2020.
With respect to the claimant’s claim for domestic assistance, the claimant’s solicitor’s responded as follows:
“The claimant resides with her husband and their children Loretta (21) and Thomas (18) in a double-story, four-bedroom house, with a study, aviary and large backyard. As a result of the accident, the claimant requires assistance from her husband and daughter with the following but not to, domestic duties:
a)garden and outdoor maintenance
b)vacuuming
c)mopping cleaning
d)laundry, including hanging the washing on the line
e)cooking
f)carrying shopping and
g)general household duties
the claimant makes a claim for past domestic assistance at a rate of 20 hours per week for the first six months following the accident. The claimant makes a claim for the domestic assistance which she continues to receive at a rate of 14 hours per week.
The claimant relies on the report of Dr Conrad dated 14 January 2019 and makes a claim for future domestic assistance as follows.
‘Should her husband and daughter not be able to assist her with the heavier part of housework, home and garden maintenance, she might need about six hours per week of home care assistance.’
Accordingly, the claimant makes a claim for future domestic assistance of six hours per week for the remainder of her life expectancy.”
The claimant has provided no independent information to the Panel about the activities she says she needs assistance with and the amount of time that might be expended in undertaking those activities. She has not provided any statements to the Panel from her husband and her daughter confirming the nature of activities performed by them to assist the claimant. In her examination with Medical Assessor Moloney, the claimant said that she still does all the cooking, although she does this by way of providing a simpler menu than previously and occasionally orders takeaway. Her husband looks after the vegetable patch, which she used to do previously. She loads the washing machine, but the children put the clothes on the clothesline and remove it. She does limited ironing and is limited by right arm pain. She states that her husband does vacuuming and sweeping. No information has been provided about the actual needs of the claimant for activities she cannot perform and the time taken to perform specific activities.
There is no occupational therapist report to assist the Panel about any assistance that may be required, and for how long.
The Panel is mainly reliant on the opinions of Dr Conrad for the claimant and Dr Smith for the insurer as well as the findings of Medical Assessor Cameron. Dr Giblin provided no recommendation.
The claimant has submitted that the Medical Assessor failed to identify certain restrictions to her activities of daily life and with those restrictions, the impact of these on the claimant’s ability to perform domestic chores, and the extent of any ongoing assistance required in relation to this.
The claimant says that noting the Medical Assessor’s diagnoses and the acknowledgement that the claimant continues to have ongoing restrictions, it is submitted that the Medical Assessor has failed to identify those restrictions, the current and ongoing impact of these on the claimant’s ability to perform domestic chores, and the extent of any ongoing assistance required in relation to these.
The claimant relies on the opinion of Dr Conrad, who says that if the claimant cannot maintain the assistance of her husband and daughter, she will need six hours of home care per week. Dr Conrad made no attempt to say what activities would need such care and why.
With respect to the medico-legal report relied upon by the claimant, from Dr Conrad, general surgeon, the insurer says that he is not qualified to assess the extent of any need for care caused by the accident.
The insurer says that the claimant has failed to particularise her pre-accident participation in domestic duties and how these allegedly changed following the accident, such that she initially required 20 hours of assistance and then 14 hours thereafter.
The insurer submits that the claimant has failed to particularise the extent of her alleged functional incapacity due to accident-related injuries.
The insurer says that the claimant has failed to particularise whether she will have any ongoing disability or functional incapacity and what reasonable care needs (if any) are required in the future as a result of any ongoing disability or functional incapacity.
Dr Conrad has provided a brief opinion about the claimant needing domestic assistance. However, Dr Smith has investigated inconsistencies of the examination testing results of the claimant.
Dr Smith reported that he could not find anything objectively wrong with the claimant on clinical examination. He said that the slight restriction in the range of motion of the neck in all directions was unremarkable. He also said that weakness in the right upper limb was unphysiological. He said that there was no organic illness that could produce that pattern of weakness.
Dr Smith observed that shoulder elevation on the right was weak. Neck rotation to the right was weak. Dr Smith said that shoulder elevation and neck rotation are performed by the trapezius muscles and the sternomastoid muscles respectively. Dr Smith went on to say that these muscles are innervated by the 11^th cranial nerve, which exits the skull directly by its own foreign behind the ear. He said that it penetrates and supplies the sternomastoid muscle, then crosses the anterior triangle of the neck to penetrate and supply the trapezius muscle. That structure was not involved in the motor vehicle accident. Neck rotation to the right, which was weak, is performed by the left sternomastoid muscle. Medical Assessor Moloney notes that at the time of his examination, there was minimal loss of elevation of the right shoulder and full neck rotation. The only sign was tenderness on palpation of the right scalene muscles, which do not affect shoulder movement. There was no evidence of any accessory nerve involvement.
The claimant demonstrated, on examination by Medical Assessor Moloney, a full range of movement of her left shoulder. Her range of movement on the right shoulder was only partially limited. While the claimant says that she can put the clothes washing in the washing machine, she says that she cannot hang out the washing. The Panel does not see any impediment to the claimant hanging out the washing, given her near full range of movement of both shoulders.
The claimant says that she can iron clothes but has some restrictions of movement. The Panel is of finding that if there is any restriction, this comes about because of her ulnar nerve pain, which is not caused by the accident. This is not pain referred from the claimant’s neck. The Panel says though, that any ulnar nerve pain, which is not accident related, would not prevent the claimant from undertaking domestic activities.
The Panel has read the report of Dr Bertucen going to the claimant’s psychiatric disabilities. He said that the claimant has broken sleep and low daytime energy levels. He said that her daytime lethargy impacts her ability to maintain domestic functioning to tidiness to her previous fastidious standards.

The determination of the Panel is subject to the provisions of the Motor Accidents Compensation Act 1999 (the Act), with the accident having occurred on
11 October 2017. Subject to issues of causation, the claimant is only entitled to an allowance for care on a gratuitous basis for the past or a combination of an allowance on a gratuitous or commercial basis or individually in the future.
The dispute between the claimant and the insurer is about whether there is a need for the following treatment and/or care.
(a)   Domestic assistance - causation - whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is causally related to the injury sustained in the subject accident.
(b)   Domestic assistance - reasonable and necessary - whether zero to seven hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is reasonable and necessary in relation to the injury sustained in the subject accident.
(c)   Domestic assistance - causation - whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident.
(d)   Domestic assistance - reasonable and necessary - whether zero to four hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained.

CAUSATION
The Motor Accident Guidelines

The Motor Accident Guidelines identifies the test for causation at cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at p 316 of the AMA 4 Guides.

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one.” His Honour also observed that when undertaking the task of assessing causation, a review panel will derive practical assistance from the Guidelines.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to cls 6.5 - 6.7 of the Motor Accident Guidelines, being cls 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW),[4] Campbell J adopted Justice Johnson’s approach with a caveat touching upon the Civil Liability Act 2002 (the CLA):
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the Medical Assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Medical Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)).”[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].

The Civil Liability Act

As mandated by Justice Campbell in Owen, s 5D of the CLA needs to also be considered when assessing causation.

100.Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”

There are two elements to address when assessing causation under s 5D(1):
(a) “Factual causation”,[6] and
(b) “scope of liability”.[7]
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at [42]; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing “factual causation” and “scope of liability” involves the making of value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.^.
The claimant was involved in a sudden and unexpected collision. There was a degree of violent impact given that the car in which the claimant was travelling was stationary, and the collision with that car was from another car bouncing off another impact only a second or seconds earlier.
The Panel accepts that in the course of an accident, as occurred, the claimant would have suffered injuries arising from this. However, the claimant’s ongoing injuries, after examination, are not considered by the Panel to be such that she is considerably limited in her activities of daily living or at all.
The Panel does not accept that any need for care that arises from the accident would be considerable.
While the Panel accepts that the claimant has suffered injuries arising out of the accident, the Panel finds that after examining her, she did not demonstrate any significant injury that would justify the significant allowance of care. The Panel is guided by s 141B of the Act. For the claimant to be entitled to an allowance of gratuitous attendant care services, such care must have been provided for more than six hours per week and for a period of at least six continuous months. There is no limitation for the provision of commercial care.
Medical Assessor Moloney observed as part of his examination of the claimant that she had an ulnar nerve injury. This is not claimed by the claimant to have arisen out of the accident, but it would in the opinion of the Panel, affect her activities of daily life over and above any injuries arising from the accident. This mild ulna nerve injury is not contributing to the need for domestic assistance. The claimant says she has a feeling of numbness in the 4th and 5th right fingers but no sensory changes on examination. The only sign was tenderness on the pressure of the ulnar nerve at the cubital fossa of the right elbow.
The Panel is not satisfied that the claimant’s injuries are such that she would have needed the provision of gratuitous care/attendant care for more than six hours per week and beyond a period of more than six months.
The Panel notes that there is limited evidence before it of any activities which the claimant says she cannot perform post-accident, as a result of her injuries. The claimant says that she cannot tend her vegetable patch, but such an activity would not take 6 hours per week to perform. The claimant still cooks, although to a slightly lesser degree than she did pre-accident, but the claimant is now working up to 24 hours per week, which she was not doing before the accident.
Dr Conrad said that the claimant would need six hours of assistance per week, but he did not articulate what activities this related to.
The Panel finds that the claimant has recovered from her injuries arising out of the accident.
The Panel finds that the claimant may have needed attendant care of six hours per week following the accident for six months to 11 April 2018.
The Panel finds that following the accident, and after examination by the Panel, the claimant might have needed some small amount of assistance but never more than six hours of care per week and for not more than six consecutive months.
The Panel finds that at some stage following the accident, the claimant has recovered from her accident-related physical injuries and would not have needed any domestic assistance/attendant care services in any event after that.
The Panel finds that the claimant does not need the provision of domestic assistance/attendant care in the future.

CONCLUSION

The Panel revokes the decision of Medical Assessor Cameron, dated
27 February 2022.
Whether there is a need for the following treatment and/or care, the Panel determines:
115.1     Domestic assistance - causation - whether the physical injuries give rise to a need for domestic assistance from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is causally related to the injury sustained in the subject accident.
(i)The Panel agrees that the claimant has suffered a physical injury which is causally related to the accident and which gives rise to a need for domestic assistance for a limited period of time.
115.2     Domestic assistance - reasonable and necessary - whether zero to seven hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to the date of the Medical Assessor’s assessment is reasonable and necessary in relation to the injury sustained in the subject accident.
(i)The Panel agrees that the injuries arising out of the accident and to 11 April 2018 give rise to a need for the provision of domestic assistance for six hours per week for a period of six months following the accident.
115.3     Domestic assistance - causation - whether the physical injuries give rise to a need for domestic assistance from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is causally related to the injury sustained in the subject accident.
(i)The Panel is not satisfied that the claimant has a need for the provision of domestic assistance as a result of injuries causally related to the accident from the date of this assessment for the remainder of the claimant’s life expectancy.
115.4     Domestic assistance - reasonable and necessary - whether zero to four hours per week of domestic assistance in relation to the physical injuries from the date of the Medical Assessor’s assessment and until the remainder of the claimant’s life expectancy (next 33 years) is reasonable and necessary in relation to the injury sustained.
(i)The Panel does not find that the claimant is in need of domestic assistance of zero to four hours per week as a result of injuries suffered by the claimant as a result of the accident.

Clause 6.6 provides:

“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

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

(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”

Clause 6.7 provides:

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

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160°	180°
Extension	50°	60°
Adduction	50°	50°
Abduction	160°	180°
Internal Rotation	90°	90°
External Rotation	90°	90°

[2023] NSWPICMP 200

9 May 2023