AAI Limited t/as AAMI v Burns
[2024] NSWPICMP 323
•22 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Burns [2024] NSWPICMP 323 |
| CLAIMANT: | Christopher Burns |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 22 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was injured in a motor accident on 3 February 2019; medical dispute review under section 7.26 about whether the motor accident caused whole person impairment (WPI) greater than 10%; Medical Assessor (MA) found accident did not injure left hip; examined and assessed the claimant’s scarring and range of motion in left leg at 25% permanent impairment including left hip injury range of motion; insurer alleged error because MA did not consider the neuropathy and use of walking stick before the accident; Panel re-examined claimant; considered healthy before accident; lack of documentary evidence to calculate pre-accident permanent impairment; no deduction; Held – claimant reassessed at 29% permanent impairment; different outcome for body parts; previous certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate dated 9 November 2023 and issues a new certificate determining that: (a) the motor accident caused the following injuries which give rise to a permanent impairment of 29% that IS GREATER THAN 10%: (i) left knee – knee and leg injury, and consequential left hip stiffness (ii) skin/scarring. (b) The motor accident caused the following injuries which have resolved and do not result in permanent impairment: (i) left ankle injury; (ii) lumbar spine injury, and (iii) right wrist injury. (c) The motor accident did not cause the following injuries: (i) right hip – injury/pain, and (ii) left hip – injury/pain. |
REASONS
BACKGROUND
This is a permanent impairment dispute under the Motor Accidents Injuries Act 2017 (MAI Act).
Mr Burns (the claimant) was riding his motor tricycle on the afternoon 3 February 2019. He was riding in the front of his group of friends, who were riding motorbikes.
He entered a roundabout and a car pulled across in front of him. Mr Burns took evasive action and hit the median strip and then guardrails. He sustained immediate pain in his left leg. An ambulance took him to Port Macquarie Base Hospital. The doctors diagnosed a left femur fracture, which required surgery to place a rod in the femur. There was a complicated path to recovery as the claimant’s surgical wound became infected, leading to osteomyelitis. He required further operations and considerable follow-up for treatment and rehabilitation.
Mr Burns had a significant medical history before the accident, which must be considered when assessing the permanent impairment for any injuries this accident caused. A more detailed clinical history is set out in the re-examination report below.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation.
The insurer disputed Mr Burns claim for non-economic loss and the level of permanent impairment. Mr Burns applied to the Personal Injury Commission (the Commission) to assess the permanent impairment level.
The Commission referred the following injuries for assessment:
(a) left ankle – left ankle injury;
(b) left hip – left hip injury;
(c) right hip – right hip injury/pain because of increased reliance on that body part;
(d) left knee – left knee and leg injury;
(e) lumbar spine – lumbar spine injury;
(f) skin – scarring, and
(g) right wrist – right wrist injury.
Medical Assessor Gothelf’s medical assessment produced a certificate dated 9 November 2023 assessing permanent impairment.
Medical Assessor Gothelf assessed that the accident caused injuries that inflicted permanent impairment on the claimant, which he rated as 25%
The insurer disputed the outcome and applied for a review following s 7.26(1) of the MAI Act, on the basis that Medical Assessor Gothelf’s assessment and determinations on whole permanent impairment (WPI) were incorrect in a material respect.
The President of the Commission’s delegate, Catherine Freeman referred the medical assessment to a Review Panel (Panel) on 7 February 2024.[1]
[1] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS
The statutory provisions and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under review
Original Medical Assessor’s findings
These are set out in Appendix B
Summaries
Application for personal injury benefits dated 10 September 2019
The form records Mr Burns suffered a left femur fracture, left knee injury, right wrist injury, right hip injury and back injury in the accident.
Claimant's statement dated 29 October 2019
Mr Burns is almost 62 years old and lives at Dunbogan, south of Port Macquarie NSW.
Before the accident he lived in Brisbane, Queensland.
He is a lifetime motorcyclist and had never been in an accident before 3 February 2019.
He has long-term diabetes. Around 2019 he began to suffer neuropathy in his legs.
He switched to a motor trike since he could not hold a bike upright anymore.
On the day the accident an ambulance took him to Port Macquarie Base Hospital, where he underwent surgery.
He was discharged from hospital on 11 February 2019.
In addition to his left leg injury, he says the motor accident injured his left knee, right wrist, right hip and back. He was still suffering those symptoms in October 2019.
He had to return to hospital because he developed a golden staph infection in his left leg. He underwent further surgery to wash out the infected area.
He was released to the care of his general practitioner (GP).
After he left hospital, he could not walk unassisted. He required a wheelchair and walking frame. Since he was relying on his friends to assist him with his daily living after the accident, he left Queensland and returned to live in Dunbogan.
Due to his injuries, he could not return to writing his trike.
By the time he gave this statement he was able to use crutches. He was advised he would need a knee replacement when his fractures had healed.
At the time of this statement, he still relied on his friends for transport.
Claimant’s statement dated 20 February 2022
This statement refers to flooding. In March 2021 the region where Mr Burns lives suffered a one in 100-year flooding event.[2]
[2] >
At this time, he had been receiving physiotherapy right up until the insurer denied the liability for his claim.
The symptoms and disabilities at that time included constant pain in his left thigh, hip, knee, and ankle, which was due to the accident's impact and the leg infection following the surgery.
He feels his pain daily, and it varies in intensity depending on the amount of movement and activities he undertakes.
He has scarring in his left knee and leg because of the accident.
He has limited range of movement in his left hip, left knee and ankle. He experiences minimal movement in the left knee and hip and is unable to bend his knee significantly from the straight position. The stiffness in his left ankle combined with his hip and knee condition makes day-to-day activities difficult and some near impossible. This affects his ability to walk, sit, stand and meal.
He relies on a walking stick. He relied on a scooter, that this was damaged in the flooding (in his and the insurer denied liability for that claim.
He does not have a car and still relies on friends to transport him. He cannot walk around a shopping centre, so his friends shop for him.
When the floods came, he was unable to move his furniture or personal belongings, so he lost everything he had with him.
Relying on a walking stick makes it difficult to carry his meals and drinks around his home. He is unable to lift his left leg without using his arms, which makes it difficult to get in and out of bed and cars.
He cannot bend or kneel. He is restricted in cleaning his flat.
Although he had neuropathy before the accident, he was living independently. Since the accident he cannot live independently and relies on his friends.
Matters considered and decided by the Panel
The Panel considered all aspects of the assessment under review.
The Panel met on 27 March 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel decided that Medical Assessor Oates would re-examine the Mr Burns on behalf of the Panel.
REVIEW PANEL FINDINGS
DocumentationThe Panel considered the documentation set out in Appendix D.
Clinical examination
Medical Assessor Oates examined an unaccompanied Mr Burns on 3 May 2024 at the Commission’s medical suites.
HISTORY
Mr Burns developed type 1 (insulin dependent) diabetes mellitus in his late twenties. He has had peripheral neuropathy for the last 10 years. This causes his legs to fatigue on long walks, and he would use a walking stick for security. He had no restriction of joint movement and no loss of sensation in the lower limbs. He would get needle-like pains in the posterior aspect of the thighs and calves at rest whilst he was awake, but no interference with sleep.
He developed hyperthyroidism treated with radioactive iodine in his late twenties and is on Thyroxine replacement therapy.
He had previous low back pains from wear and tear from his work as a truck driver, which involved some manual loading and unloading and mechanical loading. He would have very occasional chiropractic care.
Mr Burns said he has not had any previous serious accident, injury, or surgery.
He smokes 20 cigarettes per day.
Before the accident, he lived on an acreage with a friend at Agnes Waters in North Queensland.
He was placed on a disability support pension for his diabetes and peripheral neuropathy in his fifties.
History of the motor accident
That history is set out above.
History of symptoms and treatment following the motor accident
Port Macquarie Base Hospital’s investigations showed a comminuted distal fracture of the left femur. There were multiple abrasions elsewhere but no other serious injuries.
He was under the care of Dr Pepper, orthopaedic surgeon, Port Macquarie. He had open reduction and internal fixation of the fractured distal left femur with a laterally based plate and screws. He was then fitted with a hinged brace non-weight-bearing and mobilised on crutches.
After discharge, the wound started discharging pus and he became systemically unwell. He was re-admitted on 5 April 2019 with left knee pain and swelling and hyperglycaemia. He had an elevated blood sugar level of 46mmol/L on admission and was in a hyperosmolar hyperglycaemic state. He was treated with Actrapid insulin infusion, he was also suffering a complication of acute renal problems.
He had surgery which showed purulent discharge around the metallic hardware and pus in the left knee joint. He had four operations during this admission in April and four weeks of intravenous antibiotic therapy with Flucloxacillin via a PICC central line. His C-reactive protein (CRP) was 225 initially, which was significantly elevated, but improved to 30-40 after the intravenous antibiotics.
He developed septic arthritis in the left knee. The plate and screws were removed from the distal femur and an intramedullary rod was inserted to the femur, and this is still in his leg.
He was discharged on 23 April 2019 to his home, where he was living with his mother at the time. He had come down from North Queensland to the Port Macquarie area after his father had died. His mother subsequently died in August 2023.
He attended the fracture follow-up clinic with Dr Pepper and had a little physiotherapy and was told to see how he goes.
He had a long-term course of oral antibiotics.
He had some abrasions to the left ankle and right wrist. The left ankle recovered. The right wrist was strapped for a period and recovered. He had some low back pain after the accident, and it felt sore in wet weather. He also had some left hip soreness following the accident but no treatment for this part. He had some abrasions to the right ankle and foot but there are no ongoing problems with this part.
Relevant injuries or conditions sustained since the motor accident.
In October 2023, he had a fall and injured his pelvis. He attended hospital and was told he had a fracture. There was conservative treatment.
Dr Aiveen Bannan, infectious diseases physician supervised his antibiotic therapy at Port Macquarie, from 4 June 2019. At that time, he had almost full extension of the left knee and flexion to about 65° and was having some physiotherapy mobilising on a walking frame.
Current symptoms
His left knee is restricted in movement and there is pain from the knee radiating up towards the groin and hip area. He cannot get the left leg comfortable. His only comfortable position is sitting back in a high recliner chair at home.
He has some mild restriction of left hip movement and there is loss of muscle tone and weakness in the left lower extremity. There is no loss of sensation in the left leg. His lower back gets stiff at times. His left leg is also uncomfortable when he moves around.
His sleep is disturbed by pain if he rolls onto the sore side (left side) in his sleep.
His left shoulder catches on elevation, which has been present for the last three years and came on gradually about two years after the motor vehicle accident. He had an ultrasound and MRI scan showing a small tear and had a cortisone injection in October 2022 with benefit. In November 2023 his GP Dr Chooi at Laurieton referred him for a second cortisone injection. He is still waiting for a call up from the radiologist.
He can no longer ride the motor tricycle. When travelling by car, he must sit in the back seat so that he can extend his left leg out to a comfortable position.
Current and proposed treatment
He is having no treatment for the left leg and has weaned himself off Tramadol.
He has a couple of Panadeine Forte per month but tries to minimise all medication.
He has recently discussed with his GP the possibility of medical marijuana, but in the meantime is just putting up with the pain, as he dislikes taking medications.
CLINICAL EXAMINATION
General presentation
He was mobile with a walking stick. He was wearing thongs and told me this is because he can’t get shoes on and off because of his left leg joint stiffness.
He was of thin build with height 176cm and weight 59.8kg.
When called from the waiting room, he was noted to be sitting with his left leg extended in front of him, and he adopted this posture while sitting in the examination room.
There was 10° fixed flexion deformity of the left knee and he stood with fixed flexion in the left knee and was unable to fully extend the joint.
Lumbar spine (lumbosacral)
There was no guarding or muscle spasm and no focal tenderness.
Flexion was two-thirds of normal, extension two-thirds of normal, lateral flexion three-quarters of normal range bilaterally, and thoracic rotation two-thirds of normal range bilaterally. There was no dysmetria present.
There were no non-verifiable radicular complaints. There was no pain on springing the pelvis.
Lower extremity
Leg length; right 94cm, left 93cm.
Thigh girth; right 35cm, left 33.5cm at 10cm above superior patellar pole.
Leg girth; right 30cm, left 28.5cm at 14cm below the inferior patellar pole.
Sensation and reflexes in the lower limbs were normal. Plantar responses were both normal. Power was reduced about the left knee but intact in both lower limbs otherwise.
Active range of movement of hips, knees, ankles, and subtalar joint was measured with a goniometer.
Range of Motion of Hips Movement Right hip ROM Left hip ROM Flexion
110°
80°
Extension Normal Normal Adduction 20° 20° Abduction 30° 30° Internal rotation 30° 20° External rotation 40° 30° He stood in neutral alignment.
Range of Motion of Knees Movement Right knee ROM Left knee ROM Flexion
130°
10° fixed flexion
Extension 0° 10° flexion contracture There was no additional range of movement possible when the left knee was checked by passive movement testing, hence the left knee is considered ankylosed at 10° flexion.
Range of Motion of Ankles Movement Right ankle ROM Left ankle ROM Dorsiflexion
15°
15°
Planar flexion 40° 40° Range of Motion of Hind Feet Movement Right hindfoot ROM Left hindfoot ROM Inversion
30°
30°
Eversion 20° 20° Upper extremity
Active range of movement measured with a goniometer.
Range of Motion of Wrists Movement Right wrist ROM Left wrist ROM Flexion
60°
60°
Extension 60° 60° Radial deviation 20° 20° Ulnar deviation 30° 30° Scarring
There was a 26cm longitudinal linear scar on the lateral left thigh. There is some depression from atrophy, no tethering. The scar would not be visible with long shorts or long trousers but would be visible with shorter shorts. The scar extended from the knee area proximally towards the hip. There was slight widening in the scar. There were no visible suture or staple marks.
Consistency of presentation
The claimant presented in a straightforward manner and there were no inconsistencies.
IMAGING
There were no imaging films or reports brought to this examination.
DETERMINATIONS
Diagnosis and causation
The diagnosis is fracture of distal left femur with a secondary complication following open reduction and internal fixation with plate and screws of the development of osteomyelitis in the distal femur and septic arthritis in the left knee.
The accident caused this injury as it is referred to in the Claim Form and the hospital record from the date of injury.
There were also soft tissue injuries to the left ankle, right wrist, and lumbar spine.
Secondary stiffness in the left hip developed as a complication of the left femur osteomyelitis and left knee septic arthritis.
There were also abrasions to the right wrist and left ankle.
These injuries were related to the accident, as they are mentioned in the contemporaneous hospital record.
Scarring on the left femur and knee area is related to the accident, as this arose from surgery performed for treatment of the femoral fracture.
There was a lumbar spine soft tissue injury. This injury is related to the accident because it is mentioned on the Claim Form and discomfort is referred to in the contemporaneous medical record.
A right hip injury has been referred because of increased reliance on this part, however this injury is not related to the accident. The claimant did not refer to a right hip injury and he did not talk about any symptoms regarding this part.
The injuries to the left ankle, right wrist, and lumbar spine have resolved.
The main continuing symptomatic injury is to the left leg and in particular the left knee joint.
PERMANENT IMPAIRMENT
Scarring
The scars about the left knee and left thigh are assessed as 1% WPI according to the table for the evaluation of minor skin impairment (TEMSKI) scale.
The claimant is conscious of the scars and there is some mild colour contrast with surrounding skin, the claimant can locate the scars. There are minimal trophic changes but no visible staple or suture marks. The anatomical location of the scar would not be visible with long trousers but would be visible with mid-thigh shorts. There is a minor contour defect. There are no effects on activities of daily living (ADLs), no requirement for treatment and no adherence.
Left lower extremity
There is some mild loss of active range of movement in the left hip with 80° flexion giving 5% lower extremity impairment.
The left knee is ankylosed at 10° of flexion. This is the result of septic arthritis. This is an optimal position for an ankylosed knee and gives rise to 67% lower extremity impairment.
Combining 67% from the knee with 5% from the hip gives 69% lower extremity impairment, equivalent to 28% WPI.
Combining 28% WPI from the left lower extremity with 1% WPI from scarring, gives 29% WPI.
There is no indication for apportionment, as there is no evidence of any relevant pre-existing injury or condition on which to base a deduction.
A careful history of the claimant’s status with respect to the lower limbs before the accident–including using a stick and switching from a motorcycle to a motor tricycle because of the pre-existing diabetic peripheral neuropathy–indicated some weakness was said to be present but no loss of sensation and no joint movement restriction. Hence, there was no documented evidence on which a reliable and accurate assessment of pre-accident permanent impairment could be based.
The permanent impairment table is set out at Appendix E.
Panel deliberations
The Panel met again on 16 May 2024.
The Panel decided to adopt Medical Assessor Oates’s examination report and the impairment assessment as evidence.
The Panel discussed the findings and how they related to the parties’ submissions.
(a) In respect of Dr Smith’s report dated 1 June 2021 and the lack of a right leg scan to compare the non–injured leg from the injured left leg; despite that Dr Smith conceded all the possible impairment is due to the trauma.
(b) Dr Hyde–Page’s report dated 15 December 2020 and 2 August 2021 are said to have combined leg length discrepancies with range of motion, which is not permitted under Table 5 of the Motor Accident Guidelines.
Medical Assessor Oates relied on range of motion only. This is relevant also to the insurer’s submissions that permanent impairment should be assessed taking account of the claimant’s state before the accident such as using a walking stick and the presence of any atrophy in the leg.
The Panel did not include gait, atrophy, or leg length discrepancies to assess the left lower extremity, so those issues did not arise.
Accordingly, Medical Assessor Oates’s examination and testing yielded different outcomes to the earlier assessments. The claimant’s credit or consistency was not a relevant factor in this Panel’s findings.
Panel’s decision
The Panel found that the motor accident caused the following injuries:
(a) left femur fracture;
(b) left ankle soft tissue injury;
(c) lumbar spine strain, soft tissue injury, and
(d) right wrist soft tissue injury.
The Panel found that the motor accident did not cause the following injuries:
(a) right hip injury/pain, and
(b) left hip injury.
The Panel found that the motor accident caused the following injuries, but these have resolved so there is no permanent impairment to assess:
(a) lumbar spine;
(b) right wrist, and
(c) left ankle.
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
The Panel considered that the following injuries caused permanent impairment above 10%:
(a) left lower extremity 28%, and
(b) scarring 1%.
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 29%. The total WPI is greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Panel’s permanent impairment findings about the injuries caused by the motor accident are different to Medical Assessor Gothelf’s assessment dated 9 November 2023.
Accordingly, the Panel will revoke this certificate and issue a new Permanent Impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions
Section 7.21 of the Motor Accidents Injuries Act 2017 (MAI Act) provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 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.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Review Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise 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 the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “ Under s 63(3) of the Motor Accidents Compensation Act 1999 (MAC Act) and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a Review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC Act.
Section 41 (2) in Part 5 of the PIC Act enables the Personal Injury Commission (Commission) to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Medical Assessor’s findings
The Personal Injury Commission (Commission) referred the permanent impairment dispute to Medical Assessor Gothelf for assessment.
Medical Assessor Gothelf certified on 9 November 2023 that the subject accident caused injuries that he assessed with a permanent impairment of 25%:
Body part or system AMA 4 Guides/Guidelines references
(chapter/page/table)Permanent Current % WPI* % WPI from pre-existing or subsequent causes % WPI due to subject accident 1 Left lower extremity Table 35, table 40, 41 Yes 23 % 0% 23 % 2 Skin 6.18 Motor Accident Guidelines Yes 2% 0% 2% Total 25% Medical Assessor Gothelf decided the accident did not cause Mr Burns’ right and left hips injury or arthritis, so he did not assess permanent impairment for those conditions.
However, despite finding the accident did not affect the left hip he assessed 8% WPI from complete loss of active ROM of the left hip and combined this with WPI from the left knee to reach a combined 21% WPI. He then combined this with 3% WPI from leg length discrepancy to reach 23% WPI.
Medical Assessor Gothelf also decided that Mr Burns suffered a lumbar spine, right wrist, and left ankle injury, but these had resolved.
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
The insurer raised the claimant’s medical history including medical conditions that were active before the accident. The claimant submits that the Review Panel must only consider those pre-existing medical complaints, which could be deducted from the claimant’s permanent impairment related to the motor vehicle accident.
In this regard, the claimant refers to the following:
in relation to the claimant’s left hip, the claimant has not previously reported any symptoms in his left hip until the motor vehicle accident occurred (see clinical records of prior treating general practitioners at pages 35-64 and pages 931-936 in Burns MRP insurer’s review bundle).(a)
The first documented reference to the claimant’s left hip pain was on his second admission to the Port Macquarie Base Hospital on 5 April 2019, when he was suffering a severe infection (page 1201 Burns MRP insurer’s review bundle).(b)
The claimant underwent physiotherapy throughout 2020, (the start of which was delayed as he did not lodge his claim form with the Compulsory Third Party (CTP) insurer until 2 October 2019) where his hip flexion and extension was noted to be reduced (pages 43-46 Burns MRP claimant’s review bundle).(c)
Whilst the claimant has suffered pre-existing neuropathy, this is not an injury to a particular joint and there was no medical evidence within the material before the Review Panel suggesting any restriction in the range of movement of the claimant’s left ankle, right wrist, right hip, or left hip before the motor vehicle accident.(d)
In respect of the claimant’s lumbar spine, there is a reference to him suffering low back pain in 2015 (page 934 Burns MRP insurer’s review bundle). The insurer has annexed to its review bundle, all of the medical records available to it. The claimant Medicare history discloses all of his medical conditions. There is no reference to lumbar spine pain after 2015.(e)
The claimant’s own evidence is that he has suffered significant pain and disability in those areas referred to Medical Assessor Gothelf since the accident.(f)
The claimant submits that his presentation on medical assessment has always been found to be consistent.(g)
Insurer’s submissions
The insurer contends that the alleged injuries to the claimant’s left ankle, lumbar spine, right wrist, right hip, and left hip are unrelated to the accident.
The Review Panel must ensure that they address the following issues, to ensure a correct assessment of the claimant’s whole person impairment (WPI):
(a) the claimant’s lengthy pre-accident history. This history includes a longstanding history of diabetes, peripheral neuropathy, chronic obstructive airway disease, hypothyroidism, and evidence of mobility issues requiring assistive devices before the accident.
We refer the Review Panel to outlines of the claimant’s pre-accident history as follows:
(i)paragraphs 11-18 in submissions dated 18 December 2023, i.e. that Medical Assessor Gothelf incorrectly recorded Mr Burns was walking normally before the accident, when clinical records from Port Macquarie Base Hospital confirmed he had long-term neuropathy and using a walking stick. This was because of pain and paraesthesia in the legs. The insurer wants the panel to consider whether the muscle atrophy was present before the accident.
(ii)Paragraphs 14-22 in submissions dated 25 November 2022 regarding the history above and the long history disclosed in his general practitioners’ clinical notes referred to therein.
(b) Causation.
(c) Apportionment of impairment between the accident and aetiologies unrelated to the accident.
These hospital entries indicate that the claimant was not “walking normally prior to the accident”, and that he was mobilising with a stick prior to the accident as a result of diabetic neuropathy, and he needed analgesic medication to deal with related pain.
Medical Assessor Gothelf failed to properly consider the material that was relevant to pre-accident history and causation. As a result, he failed to provide a discernible line of reasoning.
A failure to provide reasons amounts to a material error for the purpose of review applications under s 7.26(2) and (5) of the MAI Act.
Further, the evidence of neuropathy and pre-existing walking stick use yields a need to explain whether muscle atrophy would pre-date the accident, because atrophy will result from reduced muscle activity. Medical Assessor Gothelf assessed 5% WPI due to muscle atrophy in the left lower leg.
If any inconsistencies are identified between the Review Panel’s clinical findings and information obtained through the claimant’s medical records and/or observations of non-clinical activities, the Review Panel must ensure those inconsistencies are brought to the claimant’s attention in accordance with clause 6.41 of the Motor Accident Guidelines.
The Review Panel must ensure that a path of reasoning is provided for each decision made, WPI calculations are in accordance with the AMA 4 Guides and expressly address causation and apportionment when those issues are applicable.
APPENDIX D
Documentation
The Review Panel considered the following documentation:
(a) Medical Assessor Gothelf’s certificate issued on 9 November 2023;
(b) the claimant’s review application and attached documents;
(c) Burns – 4 March2024 - MRP Insurer's Review Bundle;
(d) the Presidential delegate’s reasons referring this matter to a Review Panel, and
(e) all the documents which were provided to Medical Assessor Gothelf before the assessment under review.
APPENDIX E
The Final Whole Person Impairment is 29% WPI.
Permanent impairment table
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current
%WPI*
%WPI* from pre-existing OR
subsequent causes
%WPI* due to motor accident
1
Left LE
Table 35, Table 40,
41
YES
28%
0%
28%
2
Skin
6.18 MA Guides
YES
1%
0%
1%
* %WPI = percentage whole person impairment
0
4
0