Villanueva v Insurance Australia Limited t/as NRMA Insurance

[2024] NSWPICMP 59

DETERMINATION OF REVIEW PANEL

CITATION:

Villanueva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 59

CLAIMANT:

Mauricia Villanueva

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Dawn Piebenga

DATE OF DECISION:

7 February 2024

CATCHWORDS:

MOTOR ACCIDENTS – The claimant sustained injury in a motor vehicle accident on 6 November 2018 arising out of a carjacking; injury to hip, shoulders, arms, elbows, hands, neck, L4 compression fracture with kyphotic deformity, chest, pelvis, lower limbs and psychological injury; domestic assistance provided by sister and paid by claimant; Medical Assessor (MA) Shahzad certified request for payment or reimbursement for domestic services related to injury caused by accident and reasonable and necessary in the circumstances; Held – dispute as to whether cost treatment and care provided or to be provided to the claimant is a merit review dispute; MA Shahzad conflated medical assessment dispute and merit review dispute; insurer conceded need for domestic assistance related to the injury caused by the accident; parties asked Panel to determine whether the treatment and care was reasonable and necessary in the circumstances; following assessment by MA Piebenga Panel concluded 8 hours domestic assistance was reasonable and necessary; Panel concluded “in the circumstances’ meant reasonable for care to be provided by claimant’s sister where assistance initially provided during COVID pandemic; claimant 70 years of age, increasingly frail devout single woman; sister had relevant experience to provide the care and assistance having worked as registered nurse in Sydney for 18 years caring for persons with disabilities living in group homes; and convenience of having care provider available in home; Panel limited dispute for domestic assistance to 6 November 2023, five years post-accident when CTP care became the relevant insurer and where CTP care not on notice of the dispute, joined to the proceedings or given an opportunity to be heard; Certificate of MA Shahzad revoked and new certificate issued certifying need for domestic assistance for eight hours per week from date of accident to 6 November 2023 reasonable and necessary in the circumstances and caused by the accident.

DETERMINATIONS MADE:  

ASSESSMENT OF TREATMENT AND CARE
Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017

The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 18 July 2023 and issues a new certificate certifying as follows:

·        the need for domestic assistance for eight hours per week from the date of accident to 6 November 2023 is reasonable and necessary in the circumstances, and

·        the need for domestic assistance for eight hours per week from the date of accident to 6 November 2023 is caused by the accident.

STATEMENT OF REASONS

INTRODUCTION

1. Ms Mauricia Villanueva (the claimant) was injured in a horrific carjacking on
   6 November 2018. Ms Villanueva got into her car at the KFC restaurant Blacktown when an assailant forced himself into her car, sat on her lap. He grabbed the steering wheels from
   Ms Villanueva’s hands and tried to push her out of the car. The assailant started to reverse the car whilst pushing Ms Villanueva out of the car.  From the waist down she was pinned to the seat whilst her upper body and head was hanging out of the half-opened car door. The assailant touched the claimant’s breasts. The assailant drove the car into Tulloch Street before turning right onto Richmond Road whilst Ms Villanueva’s head and upper body were dragged along hitting the road. The car tilted and Ms Villanueva was thrown out of the car into the incoming traffic of Richmond Road.  Ms Villanueva was transported to Blacktown Hospital.

2. In the accident Ms Villanueva sustained multiple injuries including to her head, shoulders, arms, elbows, hands, neck, back, chest, hips, pelvis and lower limbs. She also sustained psychological injury.

3. At the date of the accident Ms Villanueva was 65 years of age. She is now 70 years of age.

4. On 4 September 2019 Ms Villanueva lodged an Application for personal injury benefits seeking statutory benefits in respect of injury sustained in the accident.

5. Until 6 November 2023 Insurance Australia Limited trading as NRMA Insurance (the insurer) was the relevant insurer with liability to pay statutory benefits to Ms Villanueva under the Motor Accident Injuries Act 2017 (the MAI Act). However, in accordance with s 3.2(3) of the MAI Act the relevant insurer after five years becomes the Lifetime Care and Support Authority through CTP Care.

6. On 21 October 2019 the insurer accepted liability for statutory benefits for up to 26 weeks from the date of accident and on 12 March 2020 the insurer accepted liability for statutory benefits after 26 weeks.

7. On 31 May 2022 the insurer declined the claimant’s request for reimbursement for domestic services provided by Concepcion Villanueva and Lourdes Tibig, the claimant’s sisters. On
   8 June 2022 the claimant requested an internal review of that decision.

8. On 23 June 2022 the insurer issued a Certificate of Determination – Internal Review affirming the decision dated 31 May 2022 to decline the request for reimbursement of domestic services from Concepcion Villanueva and Lourdes Tibig.[1] The insurer conceded there was a limitation in the claimant’s activities of daily living as a result of injuries sustained in the accident but did not consider Lourdes Tibig and Concepcion Villanueva represented an appropriate provider of domestic services. 

   [1] Insurer’s bundle p 385.

9. On 27 July 2022 the claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment and care dispute between the parties. That dispute was referred to Medical Assessor Farhan Shahzad.

MATERIAL BEFORE THE REVIEW PANEL

1. The Panel issued a Direction to the parties on 18 August 2023. The insurer was directed to upload to the portal an indexed and paginated bundle of documents relevant to the review. The Panel noted the claimant was self-represented and had uploaded to the portal a bundle of documents in reply to the Application for review comprising 196 pages titled Reply. The claimant was directed to upload to the portal any further documents sought to be relied upon if not already included in either the insurer’s bundle or the Reply.

2. In response to this direction the insurer on 25 August 2023 uploaded to the portal a bundle of documents paginated from pages 1 to 391 (insurer’s bundle). The insurer uploaded a second bundle paginated from pages 1 to 27 including submissions filed by the claimant and the insurer in respect of the assessment by Medical Assessor Shahzad and the Certificate of Medical Assessor Shahzad (Submissions). The insurer uploaded a third bundle paginated from pages 1 to 41 incorporating both insurer and claimant submissions for the review and the decision of the President’s delegate (Review submissions). 

3. On 22 September 2023 the claimant uploaded to the portal a further bundle of documents paginated from pages 1 to 327 incorporating the documents included in the earlier Reply documents (Claimant’s documents).

4. On 8 November 2023 the claimant uploaded to the portal an Application to Admit Late Documents dated 89 November 2023 paginated from pages 1 to 72 (AALD 8 November 2023).

5. On 22 January 2024 the claimant uploaded to the portal an Application to Admit Late Documents dated 22 January 2024 paginated from pages 1 to 58 (AALD 22 January 2024).

6. The AALD dated 22 January 2024 included submissions addressed to the Review Panel where Ms Villanueva asked the Panel to consider her request for a comfortable bed, a comfortable chair or wheel chair and for compensation for the sexual assault which occurred at the time of the accident. However, in accordance with s 7.26(6) of the MAI Act the review is to be by way of a new assessment of all the matters with which the medical assessment was concerned. In other words, the Panel is only permitted to undertake a review of the treatment and care dispute referred to Medical Assessor Shahzad.

7. The AALD dated 22 January 2024 also included schedules detailing the care Ms Villanueva asserts she received from Concepcion Villanueva from 15 June 2023 to 6 November 2023, together with tax invoices and receipts for services allegedly provided for 22 hours per week in that period.

TREATMENT AND CARE – STATUTORY PROVISIONS

1. 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.

   (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.”

THE DISPUTE TO BE DETERMINED

1. The following treatment disputes were referred to Medical Assessor Shahzad for assessment:

   ·        whether the request for payment of reimbursements for domestic services is causally related to the injuries sustained in the subject motor vehicle accident, and

   ·        whether the request for payment of reimbursements for domestic services is reasonable and necessary in the circumstances.

2. The claimant is self-represented and has made a claim for reimbursement of monies she asserts she has paid to her sisters who live with her. She has provided copies of invoices and receipts.

3. Medical Assessor Shahzad certified the request for payment or reimbursement for domestic services relates to the injury caused by the accident and is reasonable and necessary in the circumstances.

4. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, 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”.

5. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2].

   [2] Section 7.20 of the MAI Act.

6. However, Schedule 2, cl 1 of the MAI Act defines other matters to be merit review matters including (i) whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of s 3.24(1).

7. This Panel is of the view Medical Assessor Shahzad conflated the medical assessment dispute and the merit review dispute.

8. As the merit review dispute is not a medical assessment matter the Panel does not have jurisdiction to review it. A dispute as to whether the cost of the treatment and care provided or to be provided to the claimant is reasonable for the purposes of s 3.24(1) must be determined by a Merit Reviewer.

9. On 18 October 2023 the Panel issued a report and directions which included the following relevant paragraphs:

   “7.     The claimant is self-represented and has made a claim for reimbursement of monies she asserts she has paid to her sisters who live with her. She has provided copies of invoices and receipts.

   8.     On 31 May 2022 the insurer declined the claimant’s request for reimbursement for domestic services provided by Concepcion Villanueva and Lourdes Tibig, the claimant’s sisters. On 8 June 2022 the claimant requested an internal review of that decision.

   9.     On 23 June 2022 the insurer issued a Certificate of Determination – Internal Review affirming the decision dated 31 May 2022 to decline the request for reimbursement of domestic services from Concepcion Villanueva and Lourdes Tibig. The insurer conceded there was a limitation in the claimant’s activities of daily living as a result of injuries sustained in the accident but did not consider Lourdes Tibig and Concepcion Villanueva represented appropriate providers of domestic services. 

   10.    On 27 July 2022 the claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment and care dispute between the parties. That dispute was referred to Medical Assessor Farhan Shahzad.

   11.    The treatment disputes referred to Medical Assessor Shahzad for assessment were the following:

   ·whether the request for payment of reimbursements for domestic services is causally related to the injuries sustained in the subject motor vehicle accident; and

   ·whether the request for payment of reimbursements for domestic services is reasonable and necessary in the circumstances.

   12.    Medical Assessor Shahzad certified the request for payment or reimbursement for domestic services relates to the injury caused by the accident and is reasonable and necessary in the circumstances.

   13.    This Panel is of the view the insurer in their Certificate of Determination - Internal Review dated 23 June 2022 and Medical Assessor Shahzad conflated the medical assessment dispute and the merit review dispute.

   14. The dispute appears to be whether the cost of the treatment and care provided to the claimant is reasonable for the purposes of s 3.24(1) of the MAI Act and not whether any treatment and care provided to the claimant is reasonable and necessary in the circumstances or related to the injury caused by the accident. The former is a merit review dispute. As it is not a medical assessment matter the Panel does not have jurisdiction to review it.

   15.    Subject to providing the parties with an opportunity to provide submissions the Panel proposes the following:

   ·to revoke the certificate of Medical Assessor Shahzad dated 4 July 2023 on the basis Medical Assessor Shahzad did not have jurisdiction to determine the dispute; and

   ·to refer the dispute to a Merit Reviewer for determination.” 

10. The Panel directed the insurer to provide submissions on or before 1 November 2023 indicating consent or otherwise to the proposed course of action set out in paragraph 15 of the Panel Review Report and Directions.  The claimant was similarly directed to provide submissions on or before 8 November 2023.

11. On 17 October 2023 the insurer uploaded submissions objecting to the Panel’s proposed course of action to revoke the certificate of Medical Assessor Shahzad. The insurer submitted the dispute under s 3.24 of the MAI Act contains a medical issue regarding whether the provision of the care was reasonable and necessary in the circumstances given the injuries sustained by the claimant in the accident.

12. The claimant provided submissions dated 8 November 2023. She also objected to the Panel’s proposed course of action and submitted that the dispute involved a medical issue as to whether the treatment and care was reasonable. 

13. The Panel noted the position of the parties. The Panel cannot determine whether the cost of the treatment or care was reasonable for the purposes of s 3.24 of the MAI Act. The Panel asked the Commission to refer the dispute under s 3.24 to a Merit Reviewer for determination. However, the Panel agreed to determine the medical assessment dispute, that is, 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 accident.

14. The Panel conferred on 12 December 2023 and issued a further Review Panel Report and Directions to the parties directing the insurer on or before 12 January 2024 to advise the Commission whether it is agreed there is a need for treatment, in this case domestic assistance, related to the injury caused by the accident and that the dispute to be determined by the Panel is limited to whether the domestic assistance was reasonable and necessary in the circumstances.

15. On 14 December 2023 the insurer uploaded the following message to the portal:

    “The Insurer agrees there was a need for treatment, in this case domestic assistance, which was related to the injury caused by the accident and that the dispute to be determined by the Panel is limited to whether the domestic assistance was reasonable and necessary in the circumstances.”

16. On 18 December 2023 the Panel notified the parties of the examination to be conducted by Medical Assessor Piebenga at the claimant’s home on 9 January 2024.

17. The Panel proposes to limit the dispute for treatment, namely domestic assistance to
    6 November 2023 where it would be procedurally unfair to CTP Care to make a determination as to treatment after that date where CTP Care, as the relevant insurer, does not appear to be on notice of this dispute and has not been joined to the proceedings or given the opportunity to be heard.

ASSESSMENT OF MEDICAL ASSESSOR SHAHZAD

1. Medical Assessor Farhan Shahzad assessed the claimant on 15 June 2023 and provided a certificate dated 4 July 2023.[3]

   [3] Submissions p 16.

2. Medical Assessor Shahzad reported the claimant’s current symptoms were pins, needles and numbness. She complained of limited movements of her spine which affected her activities.  Ms Villanueva described her pain as constant and severe. She walked with a tetrapod in her right hand.

3. Medical Assessor Shahzad reported Ms Villanueva is unable to do any housework, she cannot cook, wash or clean her room.  She cannot do grocery shopping or other household chores. Ms Villanueva reported she is reliant on her sister, a retired registered nurse for domestic help. 

4. Medical Assessor Shahzad reported Ms Villanueva needed help to rise from her chair and was unable to flex, extend or rotate her spine.  He noted scoliosis and lordosis. There was curvature of the spine which radiated upwards thereby putting more load on the hip. He reported pins and needles and numbness in the feet.

5. Medical Assessor Shahzad certified the request for payment or reimbursement for domestic services relates to the injury caused by the accident and is reasonable and necessary in the circumstances.

REVIEW PROCEDURE

1. The insurer lodged an application for review of the medical assessment of Medical Assessor Shahzad on 18 July 2023 within 30 days of the date on which the certificate of Medical Assessor Shahzad was made available to the parties.

2. On 14 August 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).

3. 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.[4]

   [4] Rule 128 of the PIC Rules.

4. The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, the insurer having conceded that the treatment and care did relate to the injury resulting from the accident the Panel is only required to determine if the treatment and care was reasonable and necessary in the circumstances.

THE EVIDENCE CONSIDERED BY THE PANEL

Statement of Ms Villanueva

1. Ms Villanueva provided a statement dated 4 November 2021.[5]

   [5] Insurer’s bundle p 149.

2. Ms Villanueva stated she sustained injuries to her entire body including her head, shoulders, arms, elbows, hands, neck, back, chest, hips, pelvis and lower limbs. She also described psychological injury.

3. She reported CT scans of the brain did not reveal any acute findings.  However, as a result of the injury to her lumbar spine she experienced ongoing lower back pain and a gradual increase in the deformity of her back. She consulted Dr Sean Suttor and later Dr Nathan Hartin.  Ms Villanueva noted both doctors recommended against surgical intervention because of her poor bone density.

4. Ms Villanueva states she had difficulty walking, standing, and sitting for prolonged periods of time.  She also described difficulty bending, twisting, kneeling, and crouching and is unable to lift, carry, pull or push any heavy objects. Ms Villanueva states she is no longer able to perform domestic household duties including cleaning, cooking, vacuuming, dusting, washing dishes, washing clothes, hanging laundry and grocery shopping and relies upon the assistance of her sisters.

5. Ms Villanueva was also diagnosed with post-traumatic stress disorder and commenced psychological treatment.

Treating medical evidence

Blacktown Hospital

1. Ms Villanueva was assessed at Blacktown Hospital where it was noted she had a laceration in the occipital region of her scalp, abrasions over her left forearm and elbow, tenderness in her right hip, her left hip and lumbosacral region and headache. There was no documented loss of consciousness.  The scalp laceration was glued and dressed, and Ms Villanueva was discharged home the following day.

Healthway Medical Practice

1. There was a history of systemic lupus erythematosus in 2008.

2. On 13 December 2018 Dr Julie Ong, general practitioner (GP) recorded the claimant was carjacked on 6 November 2018 when she was dragged head to concrete for about
   20m.  She had a laceration to the front parietal region of the scalp.

3. On 16 January 2019 Dr Ong recorded Ms Villanueva was still getting headaches and back pain.

4. On 29 August 2019 Dr Ong reported Ms Villanueva still had a sore back and could not stand straight since the accident. She also complained of headache associated with vomiting.

5. On 24 November 2019 Dr Ong referred to constant back pain. 

6. On 20 August 2020 osteoporosis was diagnosed.

Dr Sean Suttor, orthopaedic specialist

1. On 13 December 2019 Dr Sean Suttor reviewed the claimant.[6] He reported lower back ache and a gradual increase in deformity. Ms Villanueva felt she was more bent over and unable to stand up straight. On examination he reported Ms Villanueva stood with a positive sagittal balance and coronal shift to the right with a slow tentative walk. He noted the MRI scan demonstrated wedging through the L4 vertebra. He recommended X-ray and bone density scan.

   [6] Insurer’s bundle p 273.

2. On 18 December 2019 Dr Suttor reported Ms Villanueva had marked osteoporosis in the lumbar spine.[7] He also noted the trauma caused a fracture which resulted in her coronal and sagittal imbalance.  He concluded given the marked osteoporosis he did not think any surgical intervention was likely to succeed in correcting her deformity.

   [7] Insurer’s bundle p 274.

3. In a report dated 3 February 2020 Dr Suttor stated the healed crush fracture of the L4 vertebra with resulting kyphosis deformity and positive sagittal balance was related to the accident.[8] He also concluded the pre-existing osteoporosis contributed to the fracture and the degree of collapse and compression. Dr Suttor reported Ms Villanueva was able to self-care but would have limitation of domestic duties as they relate to physical activities due to her lower back pain and inability to stand for extended periods.

   [8] Insurer’s bundle p 276.

Dr Nathan Hartin, orthopaedic specialist

1. On 17 November 2020 Dr Nathan Hartin reported spinal deformity radiographs performed on 16 September 2020 demonstrated compression fracture at L4 where there is significant local kyphotic deformity creating a trajectory to significant positive sagittal balance. He agreed with Dr Suttor that surgery would be inadvisable given the claimant’s significant osteoporosis. He stated surgical correction would require a spinal osteotomy through the L4 level and instrumentation extending from L2 to the pelvis. He considered the high risk of instrumentation failure and the risk of the surgery itself meant the risks of surgery would outweigh any potential benefits. He described her injury as disabling.[9]

   [9] Insurer’s bundle p 3.

2. On 13 June 2023 Dr Hartin reported Ms Villanueva had severe lumbar kyphosis relating to the L4 fracture affecting her ability to stand erect and therefore her activity tolerance.[10]

   [10] Insurer’s bundle p 171.

3. On 2 March 2023 Dr Ong participated in a case conference with Ms Villanueva and Pat from the insurer.  She reported constant back pain, and numbness in the left leg on and off.  She was not able to stand straight, she needed to hold on and could not undertake domestic tasks including cleaning, washing clothes, and cooking.

Rehabilitation Services, Patrick Callaghan, 6 March 2022

1. Mr Callaghan undertook an activities of daily living assessment on 6 June 2022.[11]
   

   [11] Insurer’s bundle p 326.

   Ms Villanueva confirmed the osteoporosis had been non-symptomatic until after the accident.

2. Ms Villanueva lives in a two storey home with four bedrooms and two bathrooms where the kitchen and living space is downstairs and the bedrooms upstairs.  She lived with her two sisters. Mr Callaghan reported Ms Villanueva had been sleeping on a downstairs lounge chair due to the difficulty in utilising the staircase to access the upstairs bedroom.

3. Mr Callaghan reported Ms Villanueva relied on her sisters for preparation of all meals due to her lower back symptoms inhibiting her standing tolerance and her inability to lift and or carry. Ms Villanueva’s sisters were responsible for cleaning of the bathrooms and kitchen, for mopping and sweeping and for laundry. Generally, Ms Villanueva was driven by one of her sisters when required to leave the home.

4. Mr Callaghan recommended Ms Villanueva continue receiving domestic assistance from her sisters on the basis the care routine was appropriate, and she did not wish to receive care from an external company.

Imaging

1. MRI lumbosacral spine, 21 November 2019 – the reported concludes:

   “1.  Wedge compression fracture L4 – no acute signs.

   2.    Right L45 paracentral herniation contracting right L5 nerve root and associated severe right foraminal stenosis.

   3.    Central L1/2 herniation with annular tear, no stenosis.”[12]

[12] Insurer’s bundle p 335.

1. X-ray lumbosacral spine, 13 December 2019 – the report concludes:

   “There is an L4 crush fracture associated with severe loss of anterior vertebral body height. There is grade 1 anterolistheses of L3 on L4 by approximately 5 mm.  There is focal lumbar kyphosis centred at L4, as well as a lumbar curvature convex to the left.”[13]

   [13] Insurer’s bundle p 337.

2. Bone Mineral Densitometry, 16 December 2019 – the report concludes:

   ”Bone mineral density within the lumbar spine and RIGHT femoral neck is in the osteoporotic range.

   Bone mineral density within the LEFT femoral neck is in the osteopaenic range.”[14]

   [14] Insurer’s bundle p 339.

3. Lumbar spine radiographs, 28 September 2020 – the report concludes:

   “Stable L4 superior endplate crush fracture associate with severe anterior loss of height”.[15]

   [15] Claimant’s bundle p 271.

4. MRI lumbar spine, 13 June 2023 – the report concludes:

   “There is a chronic L4 vertebral crush fracture associated with up to 70 % of anterior loss of vertebral body height with an associated vertebral kyphotic deformity, without evidence of associated cauda equina compression. Multilevel spondylotic changes are as described.”[16]

   [16] Insurer’s bundle p 82.

5. EOS – low dose X-ray spine, 13 June 2023 – the report concludes:[17]

   [17] Claimant’s bundle p 306.

   “Findings – The vertebral bodies have been numbered using the standard of nomenclature of seven cervical, twelve thoracic and five lumbar type vertebrae.

   Mild broad thoraco-lumbar kyphosis convex to the right. Using the references of the superior endplate of T4 and the inferior end plate of L4, the Cobb angle measures 20 degrees.

   Straightening of the normal cervical lordosis and thoracic kyphosis.

   Straightening of the normal lumbar lordosis with a focal kyphotic deformity centred on L4.

   Superior endplate fracture of the L4 vertebral body with up to 65% loss of vertebral body height anteriorly.

   Grade 1 retrolisthesis/retropulsion of the posterosuperior aspect of the L4 vertebral body relative to L3 measuring 3mm.

   Vertebral body heights within the remainder of the spine maintained.

   Intervertebral disc heights within the cervical spine are maintained. 

   There is pelvic retroversion:

   ·Pelvic incidence – 61 degrees.

   ·Sacral slope – 27 degrees.

   ·Pelvic tilt – 34 degrees.

   Kyphosis L1/S1 – 10 degrees.

   Marked positive sagittal balance: SVA measures 182mm.

   Positive coronal balance: C7-CSL lies 81 mm to the right of the midline at level of S1.

   Overall sagittal spine-pelvic alignment is imbalanced with compensatory mechanisms by pelvic retroversion and knee flexion (13 degrees).

   With the patient standing, the right acetabulum lies 3 mm superior relative to the left.”

Medico-legal assessments

Dr Uthum Dias, occupational physician

1. Dr Dias assessed the claimant and provided a report dated 16 October 2020.[18] He reported she has continued to suffer from debilitating symptoms of lower back pain, stiffness and discomfort and associated pins and needles radiating down both legs.  She also suffered from tension headaches, fatigue and psychological comorbidity because of the accident.

   [18] Claimant’s bundle p 42.

2. Dr Dias reported Ms Villanueva can undertake self-care activities but has to pace herself.

3. He reported Ms Villanueva lived with her two older sisters and relies on them to perform all the cooking and domestic cleaning duties at their home. She is also unable to do grocery shopping.

4. Dr Dias reported Ms Villanueva walked with a stiff antalgic gait pattern relying on a four pronged walking stick. He described “a bent kyphotic posture” and noted she sat throughout the history taking component of the assessment leaning forward indicating significant discomfort in her lumbar spine.

5. Dr Dias diagnosed an acute closed head injury and soft tissue injuries to the left shoulder, left elbow, right and left hips, both legs and both feet and toes.  He also reported:

   “Ms Villanueva suffers from chronic severe lower back pain, stiffness and discomfort with an associated chronic right L5 radiculopathy and an associated L3/L4 anterolisthesis (grade 1 – 5mm) secondary to an acute severe L4 crush fracture with a (52% loss of vertebral body height) and secondary significant focal lumbar kyphoscoliosis.”

6. He reported as a result of her lower back pain Ms Villanueva:

   “had to rely on her sisters to perform all the cooking and domestic cleaning duties at their home. … She has also not been able to perform grocery shopping duties on a consistent basis since the subject incident and relies upon her older sisters to perform grocery shopping tasks.”

7. Dr Dias concluded Ms Villanueva had required approximately eight hours of domestic assistance per week on a regular basis over the previous 23 months and was likely to continue to require approximately seven hours of domestic assistance per week on an indefinite basis.

Dr John Bosanquet, orthopaedic surgeon

1. Dr Bosanquet assessed the claimant and provided a report dated 29 October 2020.[19]  He reported Ms Villanueva lived with her two sisters and was not doing any cooking or cleaning. He reported prior to the accident Ms Villanueva provided her share of domestic duties.

   [19] Claimant’s bundle p 63.

2. On examination he reported:

   “This revealed a very wasted and frail woman, measuring approximately 150cm and weighing around 45kg. She was flexed to at least 45º and walked slowly. She had a marked kyphosis and a scoliosis to the right. Thus, her lumbar spine movements were restricted. Lying on the couch, her straight leg raise on both sides was to 60º. There was no deficit in her lower limbs and her reflexes were present. She was tender over the L4 spinous process where there was a kyphotic prominence.”

3. Dr Bosanquet concluded Ms Villanueva’s restrictions were difficulty with prolonged sitting or standing and driving distances. He reported she required assistance with activities of cleaning, shopping, cooking, and washing and would require assistance in the future. He specifically stated she would require assistance with vacuuming, dusting, cleaning the bathroom, washing, and hanging out the washing and noted the assistance would be required for the long term. 

Dr Graham Vickery, psychiatrist

1. Dr Vickery assessed the claimant and provided a report dated 9 August 2021. He reported any incapacity in functioning with respect to personal care, domestic assistance and home/garden maintenance tasks was due to her physical injuries and not her psychological injury arising from the accident.

Vocational Capacity Centre, Vocational assessment report, 2 December 2021

1. Dr Matthews Hendricks undertook an assessment of the claimant’s vocational potential.[20] In undertaking this assessment Mr Hendricks reported the following limited tolerances: sitting – up to 30 minutes, she needs to lean forward and have a special cushion to sit for this period of time; standing - up to 10 minutes; driving - up to 10 minutes; walking - up to 1 block with the assistance of a four-pronged walking stick.

   [20] Insurer’s bundle p 342.

2. The assessment was undertaken from a psychological perspective and did not take into consideration any evaluation of Ms Villanueva’s physical limitations.

Medical Assessments

Medical Assessor Ian Cameron, 3 July 2021

1. Medical Assessor Cameron assessed the claimant on 22 June 2021 and provided a certificate dated 3 July 2021.[21]

   [21] Insurer’s bundle p 308.

2. He concluded soft tissue injury to the toes, feet, legs, left elbow, left shoulder, hips, head, cervical spine, and thoracic spine had resolved.

3. He assessed 20% whole person impairment (WPI) in respect of the L4 compression fracture of the lumbar spine caused by the accident. He assessed 0% WPI in respect of scarring.

Medical Assessor Doron Samuell 31 August 2021

1. Medical Assessor Samuell assessed the claimant on 19 August 2021 and provided a certificate dated 31 August 2021.[22] He certified the claimant had sustained post-traumatic stress disorder caused by the accident resulting in a WPI of 26%.

SUBMISSIONS

[22] Claimant’s bundle p 253.

Insurer’s submissions

1. The insurer provided submissions dated 23 August 2022 in support of the reply to the initial treatment dispute.[23]

   [23] Submissions p 11.

2. The insurer submitted that whether a treatment can be considered as reasonable and necessary in the circumstances requires that the following criteria be satisfied:

   ·        directly related to the injuries sustained in the accident;

   ·        aimed at helping the injured person get back to their usual activities;

   ·        appropriate for the type of injury;

   ·        provided by an appropriate qualified health professional, and

   ·        cost effective.

3. The insurer concedes the available medical evidence indicated there is a limitation in the claimant’s activities of daily living as a result of the injuries sustained in the accident.

4. The insurer noted the services were provided by the claimant’s sisters who live at the same address.  The insurer asserts the approval of payment for domestic assistance requires properly verified expenses in accordance with the Motor Accident Guidelines to be provided.  Clause 4.101 “verification of expenses” of the Guidelines indicated that the invoice/provider is required to have an Australian Business Number (ABN). 

5. The insurer submits that the invoices and services rendered by Ms Lourdes Tibig and
   Ms Concepcion Villanueva are not properly verified expenses given they lack an ABN.  Further, the insurer submits the claimant’s sisters are not appropriate providers of domestic services.

6. However, the Panel notes that the submissions as to verification are relevant for the merit review application but not relevant to the dispute before the Panel.

7. The insurer provided submissions dated 18 July 2023 in support of the application for review.[24]  The focus of these submissions is whether the payment or reimbursement was reasonable and necessary in the circumstances, a question relevant to any merit review but not the medical assessment dispute.

   [24] Review submissions p 3.

8. The insurer notes the activities of daily living report from Rehabilitation Services fails to state the role each of the sisters undertook for household cleaning and food preparation prior to the accident which was necessary to determine whether the reimbursement for domestic services was reasonable and necessary.

9. The insurer submits the Medical Assessor failed to undertake an assessment of the claimant’s ability to lift/carry objects, to squat, the ability to push and pull objects, all of which were relevant to the claimant’s functional capacity.

10. The Insurer also submits Medical Assessor Shahzad failed to undertake a detailed neurological or musculoskeletal examination in light of the claimant’s upper or lower limb neurological symptoms.  Further, the insurer submits the Medical Assessor failed to undertake an assessment of all the soft tissue injuries to see if they had any relevance to the ability of the claimant to carry out meal preparation, grocery shopping and household cleaning.

11. The insurer also notes Medical Assessor Shahzad failed to establish whether the claimant had returned to volunteer work in a limited capacity, a relevant consideration when assessing the claimant’s functional capacity.

Claimant’s submissions

1. The claimant provided submissions in reply to the insurer’s application for review.[25]

   [25] Review submissions p 8.

2. The claimant relies upon the following to argue the need for domestic assistance is directly related to injuries caused by the accident:

   ·        Dr Suttor stated the trauma caused a fracture which resulted in coronal and sagittal imbalance;

   ·        Dr Hartin diagnosed a fracture of the L4 vertebra which he described as a disabling injury;

   ·        Dr Ong confirmed in a certificate dated 14 December 2020 that the claimant had no history of back pain prior to the accident;

   ·        Dr Ong certified Ms Villanueva was unable to perform activities of daily living due to chronic lower back pain;

   ·        “Dr Dias reported Ms Villanueva’s injuries have had a negative impact on her domestic function over the past 23 months and on an indefinite basis into the foreseeable future;

   ·        Dr Dias certified Ms Villanueva required past assistance on a regular basis of eight hours per week and is likely to require ongoing domestic assistance at a rate of approximately seven hours per week on an indefinite basis;

   ·        Dr Bosanquet reported Ms Villanueva required seven to eight hours domestic home help care currently and into the future;

   ·        Dr Vickery stated any incapacity in functioning with respect to domestic assistance is due to physical injuries arising from the accident;

   ·        Medical Assessor Cameron assessed a WPI of 20%;

   ·        the MRI report of 21 November 2019 confirmed the L4 vertebra fracture with compression > 50%, and

   ·        the MRI report of 10 June 2023 confirmed the L4 vertebra fracture with compression > 70%.

3. In relation to the aim for the treatment to help the injured person get back to their usual activities Ms Villanueva notes Medical Assessor Cameron assessed a permanent impairment of 20% meaning her permanent impairment is unlikely to change by more than 3% in the next year with or without treatment.

4. Ms Villanueva suggests the assistance she is receiving from her sisters is appropriate for the type of injury she has sustained.

1. Ms Villanueva suggests the services have been provided by an appropriate qualified health professional in that her sister Concepcion Villanueva worked as a registered psychiatric nurse in England for 28 years and has worked in Sydney as a registered nurse for 18 years caring for residents/patients with disabilities living in group homes. In the latter role
   Ms Concepcion Villanueva worked as a registered nurse caring for patients with disabilities by preparing their meals, cleaning, washing, giving them medications and other household duties.

2. Ms Villanueva states the domestic assistance provided by her sisters is cost effective where she is paying approximately 40% of the cost of an external provider.

3. Ms Villanueva states prior to the accident she cooked her own food, washed her own dishes washed her own clothes, hung her own laundry, cleaned her own room, vacuumed her own room, cleaned her own bathroom and toilet, cleaned the lounge room, the kitchen whenever she used it or cooked her own food, cleaned the dining room when she used it and did her own grocery shopping.

4. She also reported Lourdes Tibig lived in Manilla until she arrived in Australia on
   16 March 2020

5. Ms Villanueva submitted she continued to teach scripture as a volunteer, but it has been reduced to ½ an hour per week, although the Panel notes Ms Villanueva informed Medical Assessor Piebenga that she is no longer involved as a church volunteer other than on special occasions.

THE EXAMINATION

Applicant’s description of accident

1. Ms Villanueva described;

   “I’d purchased KFC and just got back to my car. As soon as I got into the car there was a 17 year old man who sat on my lap. He started to take control of the steering and then attempted to throw half of my body out of the driver’s door of the car. Because he was sitting on me, half of my body was stuck in, and half was out. My head was being knocked on the ground. I felt blood coming out of my head. He was reversing and my head and elbows were being scraped along the ground. At one point I could see the car wheel and thought he is going to run over me. I thought ‘God, if he runs over me, let me die quickly’. He then started to drive forward. His weight was crushing my pelvis. After a few minutes, he must have hit something, not sure if this was the reason but I was thrown out of the moving vehicle. I landed on my back. A couple rescued me, the lady said she’d seen everything. She took me straight to Blacktown Hospital.”

Applicant’s description of injuries

1. Ms Villanueva recalled “I was in pain everywhere – my whole body. The worst pain was in my head and my back. Even after taking two Panadols the pain would not go away. I thought it was coming from the brain. I found out that I’d fractured my L4 a bit later”.

Applicant’s description of treatment

1. In summary, Ms Villanueva reported:

   “I was in Blacktown Hospital for one night and was discharged the following morning. They glued the cut in the top of my head. I went to Westmead Hospital for a second opinion, and they did further tests but couldn’t find anything in my head/brain.

   The pain was not getting any better. I went back to my GP who referred me for physiotherapy. The pain was getting worse, so my GP suggested I have an MRI. After waiting for several months for approval from NRMA I eventually paid for this myself [NRMA subsequently reimbursed this]. The MRI showed the fracture [L4]. I think the MRI was in 2019.”

Pre-accident social situation

1. Ms Villanueva is one of nine children. She has seven sisters and one brother. She was born in the Philippines and has been living “on and off” in this house which she described as “the family home” since 2000.

2. Concepcion arrived in Australia in 2005 and is five years older than her.

3. Ms Villanueva is single having never been married. Together with Concepcion they provided care to their mother who passed away in 2007.

4. Ms Villanueva last worked as a computer analyst/programmer for the Australian Taxation Office in 2007. She had been based in Canberra. She did not return to work after her mother passed away. In the 10+ years prior to the accident she had not been in paid employment and instead had committed her time to the church. She has been unable to return to her volunteer commitments and noted that she seldom leaves the house except to attend medical appointments.

5. Concepcion was employed as a nurse caring for people with disabilities. She was working shift work and had a lot of flexibility in her hours. She had been working for the same organisation for many years and had accrued a lot of sick leave so after the accident she was able to take Personal Carers leave to help Ms Villanueva.

6. Ms Villanueva’s other sister’s visit regularly. She has three sister’s living in Sydney (Glendening, Pendle Hill, and Westmead).  Tibig lives in the Philippines but travels back and forward regularly. Tibig arrived in Australia in March 2020, right at the outbreak of COVID-19. She stayed for one year. Ms Villanueva’s brother lives in New Zealand. Her father was tragically murdered in 1990 when the family were living in the Philippines.

Past gratuitous assistance

1. Before the accident Ms Villanueva stated;

   “I was very lively, fit and well. I could stand straight, walk straight, I could cook my own food. I was driving. I could do the shopping. I was very involved in the church (St Andrews Apostle, Maryong). I did community service in the church; I did the cleaning, and I would do a reading most weeks. I taught scripture to young children in state schools. I do still go to church on the big occasions (Christmas and Easter) but I have withdrawn from my voluntary roles.”

2. Ms Villanueva informed me that her sisters, Concepcion and Tibig have been providing assistance for personal care and domestic tasks since the day she was discharged from hospital however she did not start to invoice the insurer for the assistance provided until the L4 fracture was confirmed following the MRI. Since this time, she has been submitting invoices for eight hours a week. Medical Assessor Piebenga asked how a decision was made regarding the number of hours claimed and she explained that this was the number of hours the independent medical examiner considered reasonable.

3. Ms Villanueva recognised that pre COVID-19, it was reasonable for the insurer to argue for the use of an external service provider, however, once COVID-19 restrictions came into place, she does not believe this remained reasonable. She added “Even if there wasn’t COVID, I would still want to hire my sister”. She’s a registered psychiatric nurse, she was trained in the United Kingdom (UK), she worked in the UK as a nurse for 28 years and then worked as a nurse in Australia for 18 years with patients with disabilities.

4. At the time of the accident, Concepcion was working full-time. She took six months long service leave and then retired in 2019. The claimant’s other sister also provided some assistance.

5. Ms Villanueva expressed frustration that the insurer has denied ongoing payment for services provided by her sister, noting that she had reports from both her own doctor and the “insurance doctor” that confirm she requires assistance. She added “when I first lodged the claim with NRMA it was disputed. There was an internal review, and it was referred to PIC. PIC assigned it to Dr Shahzad who confirmed that I did need domestic assistance”. She commented “I think NRMA are saying Dr Shahzad made an error … Dr Shahzad did not give a reason for why he approved it”.

6. Ms Villanueva claims her sister has continued to provide assistance between 14 June 2023 and the date of the assessment, however she hasn’t seen the point in sending invoices to the insurer as they have “constantly been disputed”.

7. Regarding services provided between 16 April 2022 and 23 June 2022 inclusive, invoices were sent to the insurer but have not been reimbursed.

8. Medical Assessor Piebenga asked Ms Villanueva if the services had changed in December 2022 noting that the cost had increased. She explained “the price doubled in December 2022 due to an increase in cost of living and inflation”. 

Current symptoms (self-report) and functional status

1. Ms Villanueva provided a self-report of her current symptoms.

2. Post traumatic-stress disorder - I am still dealing with extreme depression and anxiety. I avoid the area where the accident happened. I can travel as a passenger as long as I can avoid that area. I’ve been having nightmares. I am woken by a nightmare about four times a week. The scene of the accident and an image of the person will trigger me. My temperature regulation is all out – I get sweaty hands and perspire a lot. I know this is all related to anxiety and stress.

3. Lower Back Pain - I still have constant pain in my back. I do get numbness and tingling in my arms and legs and around my pelvis – that occurs about three times a week.

   Comment by Medical Assessor Piebenga:  Despite claiming injuries to other body parts, the main physical injury affecting Ms Villanueva relates to her lower back. Her upper limb injuries were soft tissue in nature and with time resolved. She did describe some numbness and tingling but this is not affecting her functionally. The injury to her lower back and subsequent forward flexed posture is what has limited her ability to walk, stand, lift, carry, push/pull, squat and reach. She is flexed forward so can still reach to straighten her bed and is able to transfer on and off seats independently. I also note the comments of the medical assessors above in relation to her functional limitations.

4. Headaches - these are not every day. There is numbness in my head over the scar.

   Medical Assessor Piebenga observed that Ms Villanueva’s hair growth over the region of the scar was different to the rest of her head.

5. Mobility - I struggle to walk without sticks, even in the home. I use one four prong walking stick when in the community. I have not driven since the accident. My sisters will take me to my appointments.

   Comment: See photos 1 to 12 – Medical Assessor Piebenga observed a very frail woman who was forward flexed (between 30 º and 45º). She walked slowly and mobilised throughout her home a single walking stick for support. When the assessment moved outside, Ms Villanueva used two walking sticks despite the ground being level. She leaned heavily on her walking stick and also used the furniture and walls for support.

[IMAGES UNABLE TO RENDER]

Photos 1 to 3: Mobilising indoors with a single walking stick

[IMAGES UNABLE TO RENDER]

Photos 4 to 5: Mobilising outdoors with two walking sticks

[IMAGES UNABLE TO RENDER]

Photos 6 to 9: Negotiating single step to exit rear of house (balancing with sticks to change footwear)

[IMAGES UNABLE TO RENDER]

Photos 10 to12: Independent sit-to-stand transfer (using chair for support)

Ms Villanueva had a marked kyphosis and a scoliosis to the right (see photos 13 and 14). Thus, her lumbar spine movements were severely restricted. She showed Medical Assessor Piebenga her back who noted there was a kyphotic prominence.

[IMAGES UNABLE TO RENDER]

Photos 13 and 14: marked kyphosis and scoliosis

1. Sitting Tolerance - I normally need to change my position every ½ hour.

   Comment: Medical Assessor Piebenga observed Ms Villanueva to sit for almost one hour without getting up. She sat with a forward flexed posture and although she did not look comfortable, it was her impression that standing would not have eased her discomfort.

2. Standing tolerance - I can only stand with the stick for 20 minutes. Standing to brush my teeth is a real struggle. I brush my teeth in the toilet sink.

   Comment: Medical Assessor Piebenga observed Ms Villanueva to stand and walk around her home for a maximum of 15 minutes before she sat (on the toilet) following demonstration of a transfer.

3. Lifting - even lifting the kettle is difficult.

   Comment: Ms Villanueva did not display the stability to attempt unilateral or bilateral lifting.

Activities of Daily Living Status

Activity	Reported Functional Status Pre-Injury	Reported Functional Status Post-Injury
Personal care including: -   eating and drinking -   sleeping -   toileting -   grooming -   showering and -   dressing	Independent. At the time of the accident Ms Villanueva slept upstairs. She described her bed as “very old and uncomfortable”.	Ms Villanueva has retained independence with her personal care noting “it takes a lot of effort. I can do it with great difficulty and with pain. I seldom shower”. There was a period when Ms Villanueva “didn’t shower for six months”. She added “I’m only showering every three months”. The insurer have provided her with a shower stool which she finds helpful. She added “I can shower myself, it’s that I don’t want to shower. I don’t believe I need to because I am not going anywhere. I do go out for GP/Specialist consultation but even then I don’t shower”. Ms Villanueva showers in the master bathroom which is located upstairs. She has access to a toilet downstairs. She demonstrated independent transfers on and off her couch and mobilising to the toilet. She was observed to independently transfer on and off the toilet slowly and carefully (see photos 15 to 18). Ms Villanueva demonstrated that she could access the kitchen to get herself a glass of water although noted her sisters tend to do this for her. She was slow to mobilise around her house and would not have been able to carry items over a distance. Her sisters will bring drinks and meals to her in the lounge room. Ms Villanueva sleeps on the couch in the living room. She has allegedly asked the insurer to provide her with a comfortable bed and believes an Occupational Therapist (Patrick Callaghan) did recommend a bed. She commented “there is no point in moving my bed downstairs because it is very old and very uncomfortable”. She is hesitant to purchase a new bed as she considers the insurer should provide this for her. She added that a stair lift had been recommended but she would rather a bed be provided that she can sleep on downstairs.  Recommendation: Consistent with the medical documentation, Ms Villanueva has remained independent with personal care, I note that she is no longer showering daily. Her sisters were observed to assist with bringing her a drink and setting up her area. I do not support this assistance as reasonable or necessary and consider Ms Villanueva should be encouraged to continue to mobilise throughout her home environment. The purchase of a new bed is supported as reasonable.
[IMAGES UNABLE TO RENDER] Photos 15 to 18: Independent with toilet transfer using Over Toilet Aid (OTA)
Meal preparation and cooking	Ms Villanueva cooked her own food and her sister (Concepcion) would cook for herself. She would make herself a fried egg and bacon for breakfast with boiled rice noting that she used a rice cooker. She commented that it would take her one hour to prepare breakfast, another hour for lunch (chicken stock with rice and vegetables) and that she would heat up leftovers from lunch for dinner which would take her 20 minutes.	Since the accident, Concepcion has prepared enough food for two people. Ms Villanueva noted that it does not take her sister a lot of extra time as she was preparing her own meals previously. She added “we eat the same food”. Recommendation: Minimal (approximately 20 mins/day) additional time taken. Total assistance supported – 140 mins/week
Washing up	Although there is a dishwasher it was never used. Ms Villanueva would handwash the items she used, noting it was only one or two plates at a time. It would take her approximately 20 minutes a day. Her sister would do her own dishes taking a similar amount of time.	Ms Villanueva’s sister has been doing the household dishes. She would have been washing her pots and plates any way so it is just a few extra plates, cups and utensils. Recommendation: Minimal (approximately 10 mins/day) additional time taken. Total assistance supported – 70 mins/week
Light tidying and cleaning (eg. wiping benches, and dusting)	Ms Villanueva and her sister would both complete light cleaning. She estimated they both spent about ten minutes a day wiping down surfaces.	Ms Villanueva’s sister is now doing all the benches but it is not taking her any extra time as there is only one person cooking. Additional assistance not provided.
Bed-making	Ms Villanueva would straighten her bed every day.	Since the accident, Ms Villanueva has been sleeping on the couch. She has a sheet and sleeps under a doona. She demonstrated that she could straighten her bed independently (see photos 19 and 20). Additional assistance not provided.
[IMAGES UNABLE TO RENDER] Photos 19 to 21: Demonstrating ability to straighten sheets on couch prior to sitting back down.
Changing linen	Ms Villanueva would strip and wash the bed linen weekly. She estimated this would have taken her 20 minutes a week.	Ms Villanueva sister will strip and change the bedlinen for her. The sheets are being washed once a fortnight. Ms Villanueva estimated this takes her 20 minutes. Total assistance supported – 10 mins/week
Laundry	Ms Villanueva did her own laundry. She estimated that she would complete 3 loads a week (lights, darks & towels/sheets). She estimated that it took 20 minutes per load (5 minutes to sort/load, 10 minutes to hang out and 5 minutes to fold and put away).	Her sister has been completing 2 loads of washing one week and an extra load (sheets) every alternate week. She added that despite not showering she perspires a lot so needs to change her clothes often. Her sister sorts and loads the machine, hangs the washing out and brings it in. Ms Villanueva walked to the washing line using two sticks. She would not be able to carry a basket of wet washing. Despite attempting to straighten her back to reach up, she was unable to reach up to the line due to her forward flexed posture (see photos 4 and 5). She commented “I can’t stretch to reach it”. Ms Villanueva estimated it takes her sister 20 to 30 minutes per load. Recommendation: It is reasonable that her sister has been completing two loads of washing per week. Total assistance supported – 40 mins/week
Folding of laundry	Ms Villanueva reported that she used to fold the washing when she brought it in.	Ms Villanueva claims that she has not attempted to fold the washing and that her sister has been doing this for her. She admitted this is probably a task she could do if she wasn’t in too much pain. Total assistance supported – 0 mins/week
Ironing	Ms Villanueva reported that she was “not somebody who irons”.	No change. Total assistance supported – 0 mins/week
Vacuuming	Ms Villanueva reported we both vacuumed upstairs once a week, taking 30 minutes each.	Ms Villanueva’s sister has continued to do the vacuuming however it is no longer being completed twice a week. She commented “it’s probably once a week, maybe three times a fortnight and it takes Concepcion 30 minutes”. Recommendation: It is reasonable that her sister has completed vacuuming in her stead once per week. Total assistance supported – 30 mins/week
Sweeping & Mopping	Ms Villanueva and her sister would alternate who was responsible for mopping and it was completed every second day taking approximately 40 mins using a mop with water and a bucket.	Ms Villanueva has not attempted to mop since the accident. Her sister does this three times a week. It takes her 40 minutes each time. I haven’t tried to sweep or mop. Recommendation: It is reasonable that her sister has been completing the mopping each week. Mopping once or twice a week is sufficient as there are no pets or children in the house. Total assistance supported – 40 mins/week
Heavy cleaning of bathrooms, including shower screens and, bathtub and toilet	Ms Villanueva and her sister shared the cleaning. Ms Villanueva would clean her own bathroom, her sister would clean her own and they would alternate cleaning the third bathroom once a fortnight. It took 20 minutes to clean each bathroom.	Ms Villanueva has not attempted to clean the bathrooms since the accident. Her sister, Concepcion now cleans all three bathrooms “when needed”. Concepcion will clean her own bathroom weekly (as she did previously) and she will clean the other bathrooms when necessary “perhaps once a fortnight”. Recommendation: It is reasonable that her sister has continued to clean her own bathroom once a week. The second bathroom (upstairs) is seldom used (Ms Villanueva commented she is only using this every three months), however it would still need to be wiped over fortnightly. The toilet (downstairs) is used daily so would need to be cleaned weekly. Additional cleaning has been completed and is supported as reasonable. Total assistance supported – 30 mins/week
House maintenance	Ms Villanueva and her sister would organise for tradespeople to do minor repairs. She commented “my sister can do basic maintenance like change a light bulb and change a tap washer but we have always used tradies to make repairs”. Ms Villanueva and her sister would both take the garbage from the kitchen to the bins and would alternate taking the wheelie bins to the street. Ms Villanueva enjoyed watering and arranging the pot plants but noted her sister had always done the lawn mowing and gardening.	No change - Ms Villanueva still enjoys watering the plants and this is something she can do. Her sister has continued to do all of the gardening and mowing the lawns. Additional gratuitous assistance has not been provided for home maintenance, gardening, and lawn mowing. Additional time to take the rubbish to bins and bins to the street is reasonable – 10 mins/week
Garbage management
Gardening and lawn mowing
Car Washing	Ms Villanueva had her own vehicle which she would wash approximately once a month.	Ms Villanueva’s vehicle was stolen in the accident. The police found it and returned it to her. Ms Villanueva has not wanted to drive since the accident so sold her car (which was newer) to her sister who subsequently sold her own car. She has not attempted to wash a car since the accident, noting her sister does this when needed. Ms Villanueva no longer owns a car therefore additional gratuitous assistance has not been provided.
Shopping	Ms Villanueva and her sister would both do their own shopping. She commented that she tended to get things she needed when she was out (incidentals) and would do one larger shop each week.	Ms Villanueva’s has not completed any shopping since the accident. Her sister has completed all shopping. Ms Villanueva was unable to estimate how much additional time her sister spends shopping on her behalf. Her sister has also attended to community tasks such as fulfilling prescriptions. Recommendation: It is reasonable that her sister has been doing all the shopping for the household. I consider 45 mins per week a reasonable allocation for the additional time taken to buy food and incidentals etc. Total assistance supported – 45 mins/week
Community Access & Transport	Ms Villanueva was independent with accessing the community.	Ms Villanueva reported that she has largely been housebound however when she has needed to go out she has relied on assistance from her sisters to access the community including taking her to church and medical appointments.  Recommendation: It is reasonable that her sisters have assisted her to access the community as and when needed. Total assistance supported – 60 mins/week

Comments on consistency

1. There was no evidence at the assessment of any inconsistency between Ms Villanueva’s reported, observed and assessed range of movement and function.

DETERMINATION

1. Ms Villanueva is a retired 70-year-old woman who lives with her older sister (Concepcion). Pre-accident she and her sister completed some domestic tasks independently such as shopping, laundry, cooking, bed making and cleaning their own bathrooms/bedrooms. They also shared responsibility for cleaning communal areas for example, vacuuming and mopping. Her sister was primarily responsible for gardening and lawn mowing although
   Ms Villanueva watered the potted plants.

2. Since the accident, her sister has retired from her employment as a registered nurse and has provided care and assistance with domestic tasks. This was initially provided on a gratuitous basis however following the diagnosis of an L4 fracture and an independent assessment,
   Ms Villanueva has been paying her sister for this assistance.

3. The medical evidence concludes that Ms Villanueva has marked osteoporosis in the lumbar spine and that the healed crush fracture of the L4 vertebra caused by the accident has resulted in a kyphosis deformity. Whilst it is likely the pre-existing osteoporosis contributed to the fracture and the degree of collapse and compression Ms Villanueva claims she could stand straight and that she was able to self-care and attend to domestic tasks independently prior to the accident. Her ability to perform tasks that involve prolonged standing, walking unaided, unilateral and bilateral lifting and carrying, reaching above shoulder height and reaching below knee height are all limited. She has not returned to driving and therefore community access is also limited. 

4. Ms Villanueva continues to undertake self-care activities independently, albeit at a reduced frequency and providing she can pace herself.

5. She relies on her sister(s) to perform all the cooking and domestic duties including but not limited to, cleaning, laundry, and shopping.

6. The insurer concedes the available medical evidence indicated there is a limitation in the claimant’s activities of daily living as a result of the injuries sustained in the accident and noted the services were provided by the claimant’s sisters who live at the same address. 

7. In considering whether the treatment and care was reasonable and necessary in the circumstances the Panel notes the available medical opinion, as follows:

   ·        Dr Suttor concluded Ms Villanueva would have limitation of domestic duties due to her lower back pain and inability to stand for extended periods;

   ·        Dr Hartin reported Ms Villanueva had severe lumbar kyphosis relating to the L4 fracture affecting her ability to stand erect and her activity tolerance;

   ·        Dr Dias reported Ms Villanueva walked with a stiff antalgic gait relying on a four-pronged walking stick and has had to rely on her sisters to perform all the cooking, domestic cleaning and shopping. He opined Ms Villanueva had required eight hours of domestic assistance per week and would require approximately seven hours of future domestic assistance on an indefinite basis;

   ·        Dr Bosanquet described the claimant as “very wasted and frail” and reported she had difficulty with prolonged sitting, standing or driving distances. He reported she required and would require in the long term assistance with cleaning, shopping, cooking and washing, and

   ·        Medical Assessor Cameron assessed a 20% WPI in respect of the L4 compression fracture caused by the accident.

8. The Panel also notes the assessment undertaken by Patrick Callaghan; occupational therapist was consistent with the assessment undertaken by Medical Assessor Piebenga. He concluded she required assistance with the preparation of meals due to her limited standing tolerance and her inability to lift and carry. He also supported ongoing assistance by the claimant’s sisters with domestic assistance including cleaning, laundry and shopping and noted she was driven by one of her sisters when required to leave the home. 

9. The Panel considered the meaning of the words “in the circumstances” when considering if it was reasonable for domestic assistance to be provided by the claimant’s sister or sisters.

10. Certainly, during the COVID-19 pandemic and the associated lockdowns which impacted the Local Government Area in which Ms Villanueva lives it is unlikely she would have been able to secure the service of a commercial provider at that time and ultimately the provision of care and domestic assistance would have fallen to her sister with whom she resides.  Further, Ms Villanueva is of Filipino background and the Panel notes the high death rate from the pandemic in the Philippines of which it is likely Ms Villanueva was aware.

11. At the time of the accident Ms Villanueva was a 65-year-old single woman of devout Catholic belief. She is now 70 years of age and has become increasingly frail since the accident.
    Ms Villanueva has also expressed concern about what she has described as the sexual assault which she asserts occurred when the assailant touched her breasts during the carjacking. Taking these matters into account the Panel is of the view that it is not surprising Ms Villanueva is reluctant to have strangers in her home for the purposes of providing domestic assistance. 

12. It is also relevant that the claimant’s sister Concepcion has, in the opinion of the Panel, the relevant experience to provide the care and domestic assistance required by the claimant.  She has worked as a registered nurse in Sydney for 18 years caring for persons with disabilities living in group homes undertaking tasks similar to those she is now undertaking for the claimant.

13. When considering “in the circumstances” the Panel also notes the convenience inherent in the current care arrangement which enables the domestic assistance to be provided as required rather than a commercial arrangement where a commercial provider would attend the claimant’s home and undertake any relevant tasks in that one hour window whether required at that time or not.

14. The Panel is satisfied that “in the circumstances” as they pertain to the claimant means it was reasonable and necessary for the claimant to be provided with domestic assistance furnished by her sister Concepcion.

15. The Panel finds the following domestic assistance to be reasonable and necessary in the circumstances:

    ·        meal preparation 20 minutes per day or 2.3 hours per week;

    ·        dishes 10 mins per day or 1.17 hours per week;

    ·        stripping and changing bedding 20 mins fortnight = 10 mins per week or 0.17 hours per week;

    ·        laundry 2 loads @ 20 mins per load = 40 mins/week or 0.67 hours per week;

    ·        vacuuming 30 mins/week or 0.5 hours per week;

    ·        sweeping and mopping 40 mins/week or 0.67 hours per week;

    ·        heavy cleaning bathrooms - 30 mins/week or 0.5 hours per week;

    ·        rubbish management 10 mins/week or 0.17 hours per week, and

    ·        shopping 45 mins/week or 0.75 hours per week.

16. An additional one hour per week (on average) for community access is also considered reasonable and necessary.

17. A total of 8 hours per week of care and assistance is considered reasonable and necessary in the circumstances from the date of accident until 6 November 2023.

CONCLUSION

1. The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated
   18 July 2023 and issues a new certificate certifying as follows:

   ·        the need for domestic assistance for eight hours per week from the date of accident to 6 November 2023 is reasonable and necessary in the circumstances, and

   ·        the need for domestic assistance for eight hours per week from the date of accident to 6 November 2023 is caused by the accident.